IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 1877 of 2009() ------------------------------ AGAINST JUDGMENT DTD 7.7.2008 IN CRA.425/2007 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM AGAINST JUDGMENT IN CC.497/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM ................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------- MATHEW JOHN, S/O. JOHN, KAROOR HOUSE, DEEPTHI NAGAR, KANJIKUZHI, KOTTAYAM. NOW RESIDING AT KARIPOTTU HOUSE, KARUKACHAL, CHANGANACHERRY. BY ADV. MR.T.MADHU MR.P.R.SHIBU RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT -------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. AJESH K.PRASAD, AJESH BHAVAN, PERUMBAIKADU VILLAGE, S.H.MOUNT P.O., KOTTAYAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1877 OF 2009 ---------------------------------------- Dated this the 15th day of June, 2009 ORDER This revision is at the instance of the accused in C.C.No.497 of 2003 on the file of Judicial I Class Magistrate's Court-II (Mobile), Kottayam. That case was initiated on a complaint preferred by respondent No.2 alleging that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.50,000/- from him and issued Ext.P1, cheque dated 25.2.2003 for the said amount for repayment of that amount. That cheque was dishonoured for insufficiency of funds. Respondent No.2 got intimation about that on 3.3.2003. Dishonour of the cheque and its intimation to respondent No.2 are proved by Exts.P2 and P3. Respondent No.2 issued statutory notice to the petitioner on 14.3.2003. Notice was returned 'unclaimed' on 3.4.2003. Issue of statutory notice by registered post and its return as 'unclaimed' are proved by Exts.P4 to P6. There is no challenge to the findings of the Crl.R.P.No.1877/09 2 courts below as to the cause of dishonour of the cheque and deemed service of notice on the petitioner. 2. As to the transaction and execution of cheque respondent No.2 gave evidence as PW1. He stated that petitioner borrowed the amount from him and issued cheque for repayment of that amount. Contention raised by the petitioner is that he had not borrowed any amount from respondent No.2. His wife was working as office assistant in the travel agency run by one Sivaprasad, father of respondent No.2. Sivaprasad obtained two blank cheques as the security as petitioner's wife was to deal with the financial transactions of the travel agency. Of those cheques, one was given by the petitioner and the other, by his wife. His wife stopped work in the travel agency since she was not given salary. When petitioner and his wife demanded Sivaprasad to return the cheques he demanded Rs.20,000/- alleging that due to the act of petitioner's wife he suffered loss. Since petitioner and his wife were short of funds petitioner's uncle, Glory Mathew gave a demand draft for Rs.20,000/- to the said Sivaprasad. Still Sivaprasad did not return the cheques. One of those cheques Crl.R.P.No.1877/09 3 has been misused by respondent No.2. Petitioner examined DW1, manager of the Federal Bank and proved Ext.D2, copy of demand draft allegedly taken by Glory Mathew in favour of Sivaprasad. Ext.D1 is the copy of complaint in C.C.No.413/2004 filed by respondent No.2 against wife of petitioner alleging that she borrowed Rs.40,000/- from respondent No.2 on 25.2.2003. Courts below were not impressed by the contention raised by petitioner, accepted the evidence of respondent No.2 and held that petitioner issued the cheque for discharge of a legally enforceable debt/liability. 3. Learned counsel for petitioner submitted that he is not challenging the finding of courts below regarding due execution of the cheque for the discharge of legally enforceable debt/liability. Counsel did not argue on the correctness of the finding entered by courts below as to the due execution of the cheque. Learned counsel submitted that petitioner is only seeking leniency in the matter of sentence and time for payment of compensation ordered. 4. Though certain contentions are raised by the petitioner in the memorandum of revision as to how according Crl.R.P.No.1877/09 4 to him the cheque happened to be in the hands of respondent No.2, he did not adduce any evidence except of course proving Exts.D1 and D2. Ext.D2 and evidence of DW1, the bank manager would only show that one Glory Mathew, stated to be the uncle of petitioner had taken a demand draft for Rs.20,000/- in the name of Sivaprasad. Ext.D1 would show that wife of petitioner had borrowed money from respondent No.2 and on dishonour of the cheque she issued, respondent No.2 had initiated prosecution against her also. Petitioner has not adduced appropriate evidence to prove or probabilise the contentions raised by him. It is also pertinent to note that petitioner did not claim the registered notice intimating dishonour and demanding payment of the amount though intimation was given to him. That indicated that petitioner was aware of the claim being made on behalf of respondent No.2. In these circumstances, I do not find reason to interfere with the finding entered by the courts below regarding execution of the cheque for the discharge of a legally enforceable debt or liability and failure of the petitioner to rebut the presumption against him. Crl.R.P.No.1877/09 5 5. So far as sentence is concerned, appellate court confirmed the imprisonment for three months and the direction for payment of compensation of Rs.50,000/-. There was also default sentence of imprisonment for three months in case of non-payment of compensation. 6. So far as substantive sentence is concerned, considering the nature of offence and the object of legislation, I am satisfied that Simple Imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation or default sentence provided. 7. Learned counsel for petitioner requested for three months' time to deposit compensation. Learned counsel submitted that petitioner is unable to deposit the amount immediately. Considering the amount involved and circumstances stated by learned counsel, I am inclined to allow that request. 8. Notice to respondent No.2 was dispensed with in view of the order I proposed to pass which is not prejudicial to him. Crl.R.P.No.1877/09 6 Resultantly this revision is allowed in part to the following extent. i) Substantive sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the court. ii) Petitioner is granted three months' time to deposit the compensation in the trial court failing which he shall undergo Simple Imprisonment for three months as ordered by the trial court. iii) It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the aforesaid time. iv) Petitioner shall appear in the trial court on 17.9.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1877/09 7