IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 1613 of 2009() ------------------------------ CRA.168/2006 of ADDL.SESSIONS COURT (ADHOC) I, KASARAGOD STC.152/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S)/APPELLANT/ ACCUSED ---------------------------- SABEER M AGED 35 YEARS, S/O.PANDYALA ABOOBACKER MASTHIGUDDA, PALLIKKERA, PALLIKKERA VILLAGE HOSDURG TALUK, P.O.PALLIKKERA. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S)RESPONDENT/COMPLAINANT AND STATE: --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. K.M.SALIH, AGED 54 YEARS S/O.MUHAMMEDKUNHI, RESIDING AT BEKAL KUNHIL ALLIKKERA VILLAGE, HOSDRUG TALUK, P.O.BEKAL. PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1613 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make and which will not prejudice to him. 2. Petitioner stands convicted for offence offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Learned magistrate sentenced him to undergo simple imprisonment for six months and to pay Rs.1,80,000/- as compensation. In appeal, substantive sentence was modified as simple imprisonment till rising of the court and compensation was converted into fine. Petitioner is still aggrieved and preferred this revision. Learned counsel contends that due execution of the cheque is not proved and that at any rate presumption under Section 139 of the Act has not been rebutted. 3. According to respondent No.2, petitioner borrowed Rs.1,80,000/- and for discharge of that liability issued Ext.P1, cheque dated 31.8.2004 which was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Dishonour of cheque for the said reason is proved by Ext.P2 dated 9.12.2004. Respondent Crl.R.P.No.1613/2009 2 No.2 issued notice to the petitioner on 16.12.2004 but it was returned with the endorsement that it was not claimed. Ext.P3 is the office copy of notice and Ext.P4 is the returned cover. Respondent No.2 gave evidence as PW1 and testified to his case. Petitioner when questioned under Section 313 of the Code of Criminal Procedure did not dispute the transaction but raised a plea of discharge. Courts below found from the evidence of PW1 that due execution of the cheque is proved and that the plea of discharge is neither proved nor probabilised by circumstances. I find no reason to interfere. 4. In appeal, a contention was advanced on behalf of petitioner that the cheque is void for material alteration in that, the figure ’80,000’ was altered as ‘1,80,000’. Appellate court considered that contention and found that the contention is unsustainable since the amount is stated in Ext.P1 in figures and words. Therefore, that contention does not survive for consideration. There is little reason to interfere with the conviction. 5. So far as sentence is concerned, learned counsel requested for three months’ time to deposit fine in the trial court. Having considered the request, in the facts and circumstances of the case I am inclined to accept the same. Resultantly, this revision petition is dismissed. Petitioner is granted three months’ time to deposit fine in the trial court as ordered by the appellate court. Crl.R.P.No.1613/2009 3 Petitioner shall appear in the trial court on 28.8.2009 to receive the sentence. Crl.M.A.No.4900 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks