IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2052 of 2009() ------------------------------ CRA.465/2008 of ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.429/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- BABY PAUL, S/O.PAULOSE, KIZHAKEKUDIYIL HOUSE, MORAKKALA, KUMARAPURAM P.O., BY ADV. SRI.SUNU P.JOHN SRI.C.DEVANAND RESPONDENT(S):/RESPONDENTS/COMPLAINANT: --------------------------- 1. T.A.ABDUL JALEEL, THARAMATTOM HOUSE, PINARMUNDA KARA, PERINGALA P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2052 of 2009 -------------------------------------- Dated this the 3rd day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Ernakulam in Crl.Appeal No.465 of 2008 confirming conviction but modifying the sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a complaint preferred by respondent No.1 alleging that petitioner borrowed Rupees three lakhs from him in December, 2003 and on his demanding repayment of the amount after three months petitioner issued cheque dated 22.3.2004 for repayment of the said amount. The cheque was dishonoured for insufficiency of funds. Petitioner was given notice intimating about dishonour and demanding payment of the amount. Petitioner did not pay the amount and instead sent reply, according to respondent No.1 taking up false contentions. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. Ext.P1 is the cheque dated 22.3.2004. Its dishonour as above stated is proved by Exts.P2 and P3. Issue and service of statutory notice are proved by Exts.P4 and P5. Petitioner contended that he had no transaction with respondent No.1, Crl.R.P.No.2052/2009 2 nor had he given any cheque. Instead, in connection with O.S.No.888 of 1997 he had given a cheque to Advocate, John Vipin but the Advocate handed over the cheque to respondent No.1 and that was misused. Courts below found in favour of respondent No.1 regarding due execution of the cheque and held petitioner guilty. That verdict was confirmed by the appellate court. It is contended by learned counsel that there is no sufficient evidence to prove the transaction or execution of the cheque. 3. It is true that petitioner has a case how else the cheque happened to be in the custody of respondent No.1. But in that regard what is available is only the plea raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure and the suggestions made to respondent No.,1 when the latter was in the box. He denied the suggestions. In the absence of evidence or circumstances persuading one to think so, it is difficult to think that the Advocate with whom the cheque was entrusted for the purpose of the civil suit handed over the same to respondent No.1. Nothing is brought out in the evidence of respondent No.1 to disbelieve him. Courts below have considered the evidence and come to the conclusion that petitioner issued the cheque for discharge of liability towards respondent No.1. On the facts, evidence and materials on record no interference is called for in revision with the concurrent finding entered by the courts below. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for nine months. Petitioner was directed to pay compensation of Rupees two lakhs to respondent No.1 and in default of payment to undergo Crl.R.P.No.2052/2009 3 simple imprisonment for three months. Learned Additional Sessions Judge modified the substantive sentence as simple imprisonment till rising of the court and payment of fine of Rupees two lakhs. Default sentence of imprisonment for three months was also provided. There is no reason to interfere with the sentence as modified by the appellate court. 5. Learned counsel requested that petitioner may be granted four months’ time to deposit the fine in the trial court. Counsel states that on account of financial difficulties petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel I am inclined to allow the request for time. Resultantly, this revision fails. It is dismissed. Petitioner is granted four months’ time from today to deposit the fine in the trial court. Petitioner shall appear in the trial court on 5.11.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks