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. 1824 of 2009() ------------------------------ AGAINST JUDGMENT DATED 25.11.2008 CRA.758/2003 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CC.810/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------------- K.SURENDRAN, S/O.KELAPPAN, AGED 56 YEARS, RAMA VILLA, SOUTH BAZAR, KANNUR-2. BY ADV. MR.K.RAJESH SUKUMARAN RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------- 1. P.V.SAHADEVAN, S/O.KUNHIRAMAN, AGED 43 YEARS, MUTHUKUTTY, P.O.MOWANCHERRY, KANNUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN 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. 1824 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 Additional Sessions Judge (Adhoc No.III), Thalassery confirming conviction and sentence of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 3. Respondent No.1 claimed that petitioner borrowed Rs.40,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 24.11.1999. That cheque was dishonoured as per Ext.P2, memo dated 7.12.1999 for insufficiency of funds. Respondent No.1 got intimation about the dishonour as per Ext.P3, memo dated 13.12.1999. He issued notice to the petitioner on 18.12.1999 intimating dishonour and demanding payment of the amount. Ext.P4 is the office copy of the notice. Crl.R.P.No.1824/09 2 Ext.P6, acknowledgment card shows that petitioner received the notice on 23.12.1999. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, he gave the cheque to Jai Sagar bankers as security and had no transaction with respondent No.1. Petitioner gave evidence as DW1. In the evidence he stated that he learned that respondent No.1 is a staff of Jai Sagar bankers. Courts below were not impressed by the case set up by the petitioner, accepted the evidence of respondent No.1 and held that petitioner issued the cheque for the discharge of legally enforceable debt/liability towards respondent No.1. That finding is under challenge in this revision. Learned counsel argued that the finding of the courts below regarding execution of cheque is not correct. 4. Ext.P1 is the cheque in question. That, it contained the signature of the petitioner and was drawn on the account maintained by him are admitted and proved. His case is that he had no transaction with respondent No.1 and instead, handed over the cheque as a security to Jai Sagar Bankers of which, respondent No.1 is said to be an employee. There is no reliable or acceptable evidence to show either that Crl.R.P.No.1824/09 3 petitioner had any such transaction with Jai Sagar Bankers or that Ext.P1 was given as a security to such bankers in the circumstances pleaded by the petitioner. It is not reasonable to think, assuming that the cheque was given to Jai Sagar Bankers that respondent No.1 who is said to be an employee in that concern stealthily obtained the cheque and presented it for encashment. Nothing was brought out to disbelieve the evidence of respondent No.1 as to the transaction and the execution of the cheque. Mere fact that the petitioner has given evidence is not sufficient to disbelieve the evidence of respondent No.1 who has produced the negotiable instrument which created liability on the petitioner. It is also pertinent to note that in spite of petitioner having a contention that he had no transaction with respondent No.1 and had not issued any cheque to the latter, he did not reply to the notice admittedly served on him. If petitioner had no transaction with respondent No.1, he would not have hesitated to reply in that way when notice was served on him. Courts below in the circumstances were satisfied with evidence of respondent No.1 and found that petitioner issued the cheque in favour of respondent No.1 as claimed by the latter, for the discharge of Crl.R.P.No.1824/09 4 a legally enforceable debt/liability. I do not find reason to interfere in revision. 5. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for six months and to pay compensation of Rs.45,000/-. A default sentence of imprisonment for three months was also provided. Appellate court did not interfere with the sentence. Learned counsel requested that leniency may be shown in the matter of sentence and that six months time may be granted to deposit compensation in the trial court. 6. Having regard to the nature of offence, amount involved and the object of legislation, I am satisfied that Simple Imprisonment till rising of the court and compensation with the default sentence awarded by learned magistrate is sufficient in the ends of justice. Considering the circumstances stated by learned counsel relating to the difficulty of the petitioner to raise the amount, petitioner is granted two months’ time from today to deposit compensation in the trial court. Resultantly, this revision petition is allowed in part to the following extent. Crl.R.P.No.1824/09 5 i) Substantive sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the court. ii) Petitioner is granted two months time to deposit compensation ordered by learned magistrate. In case of failure, he shall undergo imprisonment as ordered by learned magistrate. iii) Petitioner shall appear in the trial court on 13.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1824/09 6