IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 Crl.Rev.Pet.No. 1842 of 2009() ------------------------------ CRA.116/2008 of SESSIONS COURT, KOTTAYAM ST.279/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II (MOBILE), KOTTAYAM .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------ RAJEEV.P.G, PUTHUPARAMBIL HOUSE, POOVANTHURUTHU.P.O, KOTTAYAM. BY ADV. MR. E.D.GEORGE RESPONDENTS/RESPONDENTS/ COMPLAINANT & STATE:- ---------------------------------------------------------------- 1. SHAMON.P.A, SHANUJA MANZIL, KARAPUZHA.P.O, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1842 OF 2009 ---------------------------------------- Dated this the 11th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. 2. This revision is in challenge of the judgment of learned Sessions Judge, Kottayam in Crl.Appeal No.116/2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying sentence. 3. According to respondent No.1, petitioner borrowed Rs.75,000/- from him and for the discharge of that liability issued Ext.P1 cheque dated 26.8.2004. He presented the cheque for encashment through his bank but it was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on the petitioner on 14.10.2004. Issue and service of notice are not Crl.R.P.No.1842/09 2 disputed and proved by EXts.P4 to P6. Ext.P7 is the reply sent by the petitioner, according to respondent No.1 taking up false contentions respondent No.1 gave evidence as PW1 and testified to his case. Petitioner gave evidence as DW1 and proved Ext.D1, a photocopy of his account opening form. DW2 is a witness examined by the petitioner to support of his contention. Courts below were not impressed by the evidence of DWs 1 and 2 and found in faour of the due execution of the cheque. That finding is under challenge in this revision. 4. Respondent No.1 has given evidence regarding the alleged transaction and execution of cheque. He asserted that petitioner borrowed Rs.75,000/- from him and issued the cheque for payment of that amount. When questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”), petitioner claimed that at a time when he was appointed as Cashier in a textile shop, ten blank cheques were handed over to one Muhammed Yoosaf as security and the said Mohammed Yoosaf has handed over one of those cheques to respondent No.1 which the latter misused and presented for encashment. When petitioner was examined as DW1, he denied that Ext.P1 contained his signature. Courts below Crl.R.P.No.1842/09 3 observed that there was no case suggested to respondent No.1 when the latter was in the box that Ext.P1 did not contain the signature of the petitioner. On the other hand suggestion was that Ext.P1 is one of the cheque leaves petitioner had handed over to Muhammed Yoosaf. Courts below observed that even when questioned under Section 313 of the Code with reference to Ext.P1, petitioner did not have a case that he had not signed Ext.P1. On the other hand, respondent No.1 gave evidence that petitioner issued Ext.P1 in his favour. It is also to be noted that dishonour of the cheque was not due to any dissimilarity in the signature of the drawer with his signature in the specimen signature card provided with the drawee bank. In the circumstances, denial of signature in Ext.P1 made by the petitioner when examined as DW1 can only be taken as an afterthought. 5. On the question whether the cheque was issued to respondent No.1 in discharge of any legally enforceable debt/liability, true, petitioner has a different case. DW2 is the father of Muhammed Yoosaf to whom petitioner allegedly handed over the signed blank cheques. Courts below have observed that testimony of DW2 is not in any way helpful to Crl.R.P.No.1842/09 4 the petitioner. 6. As against the version of petitioner in his statement under Section 313 of the Code that he gave 'ten' blank cheques to Mohammed Yoosaf what he has stated in Ext.P7, reply is that he handed over 'three' blank cheques to Mohammed Yoosaf. When he was confronted with Ext.P7, he pleaded ignorance about the contention raised therein and stated that he is not aware of what is stated in Ext.P7. Respondent No.1 has denied that he got the cheque from Muhammed Yoosaf. There is no reliable evidence to show that the cheque in question was given to Muhammed yoosaf in the circumstances pleaded by the petitioner. Courts below accepted the evidence of respondent No.1 who produced the cheque signed by the petitioner and drawn on his account which created liability on the petitioner. I do not find reason to interfere in revision as no illegality, irregularity or impropriety exist in the proceedings or the judgments of the courts below. Conviction, therefore, does not require interference. 7. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for six months and directed him Crl.R.P.No.1842/09 5 to pay compensation of Rs.75,000/-. Appellate court modified the substantive sentence to Simple Imprisonment till rising of the court and fine of Rs.75,000/- with default sentence for three months. Having regard to the facts of the case, the amount involved and the nature of offence, I do not find reason to interfere with the sentence as modified by the appellate court. 8. Learned counsel requested that petitioner be granted four months’ time to deposit the fine in the trial court. Learned counsel stated that petitioner is unable to raise the amount in lump. Considering the amount involved and circumstances stated by learned counsel, petitioner is granted three months’ time from today to deposit fine in the trial court as ordered by the appellate court. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 15.9.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1842/09 6