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. 2506 OF 2009() ------------------------------ CRA.33/2007 OF SESSIONS COURT, MANJERI ST.1253/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED --------------------------------------------------------------- U.HARIHARAN, S/O.AYYAPPAN, UNNIVEETTIL HOUSE, POST PACHATTIRI, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------- 1. P.SREENIVASAN, S/O.K.P.RAMAN, PACHATTIRI AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI 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.2506 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of August, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor took notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate, Tirur in C.C.No.1253 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.30,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 15.11.2001. Dishonor of that cheque as account was closed is proved by Exts.P2, P3 and P7. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as P.W1 and stated that petitioner borrowed the amount and issued the cheque for repayment of that amount. According to the petitioner, he had no such transaction with respondent No.1 and instead respondent No.1 was his tenant. Room belonging to him was given on rent for conducting a STD booth and at that time he had taken an advance from respondent No.1 and given a signed blank cheque. He asked CRL. R.P. No.2506 of 2009 -: 2 :- respondent No.1 to vacate the premises and the latter admitted. Petitioner returned the advance amount to respondent No.1 but the latter refused to return the cheque and he misused the cheque. It is contended that due execution of the cheque is not proved. 3. Apart from explaining how else the cheque happened to be in the custody of respondent No.1, petitioner made no attempt to prove or probabilise his version. Petitioner did not reply to the statutory notice served on him. There is no evidence to show that it was in the circumstances stated by the petitioner that the cheque came to the hands of respondent No.1. On the other hand there is evidence of respondent No.1 regarding the transaction and due execution of the cheque. Nothing was brought out to disbelieve his evidence. In the circumstances courts below are justified in holding in favour of due execution of the cheque. Petitioner failed to rebut the presumption under Sec.139 of the Act. 4. While confirming the direction for payment of compensation of Rs.30,000/- and default sentence, appellate court modified the substantive sentence as simple imprisonment till rising of the court. There is no reason to interfere with the sentence as modified and the direction for payment of compensation or the default sentence as confirmed by the appellate court. 5. Learned counsel requested six months’ time to deposit CRL. R.P. No.2506 of 2009 -: 3 :- compensation. Counsel states that petitioner is placed in difficult financial situation and is unable to raise the amount immediately and that petitioner may be permitted to pay compensation directly to respondent No.1. Considering the circumstances stated by learned counsel I am inclined to grant time till 30.12.2009 to deposit compensation. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit compensation in the trail court as ordered by the learned magistrate. It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv