IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 2493 of 2009() ------------------------------ CRA.442/2008 of ADDITIONAL SESSIONS JUDGE (ENQUIRY COMMISSIONER and SPECIAL JUDGE) ST.423/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- SHINES NATH SWAMINATHAN, VIDYABHAVAN, PANDALAM BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENTRESPONDENTS/COMPLAINANT & STATE: ----------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. SONY THOMAS, PEEDIKATHUNDIYIL, ITHITHANAM P.O., CHENGANACHERRY. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2493 of 2009 --------------------------------------- Dated this 05th day of August 2009 ORDER Concurrent finding entered by the courts below regarding due execution of a cheque for the discharge of a legally enforceable debt/liability is sought to be unsettled in this revision. Petitioner stands convicted and sentenced by learned Judicial Magistrate of First Class-II, Changanacherry in S.T.No.423 of 2007 for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the N.I Act”). That conviction was confirmed but sentence modified by learned Additional Sessions Judge (Enquiry Commissioner and Special Judge), Kottayam in criminal appeal No. 442 of 2008. According to respondent No.2, petitioner issued Ext.P1, cheque dated 22-08-2005 for discharge of that liability. That cheque was dishonoured for insufficiency of funds as seen from Exts.P2 and P3. Service of statutory notice on petitioner is seen from Exts.P4 and P5 series. Respondent No.2 gave evidence as PW1 and stated that he is engaged in the business of distribution of mineral water, petitioner who is running a hotel was his customer and while so in June, 2005 petitioner borrowed Rs.50000/- from him. Petitioner, for repayment of that amount issued the cheque. Contention of petitioner is that respondent No.2 was running a provision store and he used to purchase provision articles from that shop. As a security signed blank Crl.R.P.No.2493 of 2009 2 cheques were given. The liability of Rs.50000/- petitioner had towar s respondent No.2 in that transaction was discharged. Petitioner paid the amount through his manager. Signed blank cheque has been misused. Respondent No.2 denied that suggestion and asserted that petitioner borrowed Rs.50000/- and for repayment of that amount issued the cheque. Contention of learned counsel is that due execution of the cheque is not proved. According to the learned counsel, complaint does not mention the date of transaction or date of issuance of the cheque. 2. This being a prosecution for offence under section 138 of the N.I Act it is not the requirement of law that the original transaction is pleaded or proved. What is required to be pleaded and proved is only the due execution of the cheque for discharge of a legally enforceable debt/liability. In the complaint, it is not disputed the date of cheque is given. It is true that respondent No.2 when examined as PW1 was not able to state precisely the date of transaction or the date on which cheque was issued. He claimed that petitioner borrowed the amount from him in June, 2005. Section 138(a) of the N.I Act provides a presumption that the cheque is deemed to be drawn on the date the cheque bears. Therefore in the absence of contra evidence it has to be presumed that the cheque was drawn on 23-08-2005, the date Ext.P1 bears. Crl.R.P.No.2493 of 2009 3 3. Contention of petitioner is that he repaid Rs.50000/- through his manager. In regard to that contention there is no evidence, oral or documentary. It is also relevant to note that inspite of being served with statutory notice petitioner did not respond to it. Courts below found in favour of due execution of the cheque. On going through the judgments under challenge and hearing learned counsel I find no reason to differ. Petitioner has also failed to rebut the presumption under section 139 of the N.I. Act. There is no reason to interfere with the conviction of petitioner. 4. Substantive sentence awarded to the petitioner is modified by learned Sessions Judge as simple imprisonment till rising of the court. Sentence of fine of Rs.50000/- and default sentence are confirmed by the appellate court. Having regard to the facts and circumstances of the case there is no reason to interfere with the substantive sentence as modified, sentence of fine or default sentence as confirmed by appellate court at the instance of petitioner. Learned counsel requested that petitioner may be granted six months' time to deposit the fine. He stated that on account of financial difficulties petitioner is not able to raise the entire amount immediately. Considering the circumstances stated by learned counsel petitioner is granted time till 30-12-2009 to deposit the fine. Deposit if any made by petitioner in any of the courts below shall be adjusted in the fine Crl.R.P.No.2493 of 2009 4 directed to be paid. Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit fine in the trial court. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31-12-2009. THOMAS P JOSEPH, JUDGE Sbna/