IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.REV.PET.NO. 1661 OF 2009() --------------------------------------------- CRA.466/2006 OF SESSIONS COURT, KOTTAYAM\ S.T. NO.481/2006, JUDICIAL FIRST CLASS MAGISTRATE KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------- P.P.ABDUL LATHEEF, PUTHUPARAMBIL HOUSE, THOTTUMUGHAM BHAGAM, KANJIRAPPALY. BY ADV. SRI.V.S.AFSAL KHAN SRI.V.A.SHAJI RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------------------- 1. K.B.JAYAN,S/O.BHARATHAN PILLAI, KALAPURACKAL HOUSE,PALABARA P.O., IST MILE. 2. STATE OF KERALA, REP.BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1661 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2009 O R D E R -------------- 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 pass in this revision which is not prejudicial to respondent No.1. 2. Petitioner stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case of respondent No.1 is that petitioner owed Rs.20,000/- to him and for the discharge of that debt issued Ext.P1, cheque dated l5.9.2005. That cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Notice was served on the petitioner but he neither replied nor complied with the demand. Hence the complaint. 3. Exhibit P1 is the cheque in question. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Issue and service of notice on the petitioner are proved by Exts.P4 to P6. Respondent No.1 gave evidence as P.W.1 and testified to his case. Petitioner contended that he had borrowed only Rs.10,000/- from respondent No.1 who is a money lender and gave a signed blank cheque which has been misused. Petitioner has not let in any evidence or brought out any CRL. R.P. No.1661 of 2009 -: 2 :- other circumstance which proved or probabilised that contention. That Ext.P1, the cheque contained the signature of the petitioner and is drawn on his account are admitted. He did not reply to the notice served on him. There is nothing on record to disbelieve the evidence of respondent No.1 as to the transaction and execution of the cheque. In the circumstances courts below are justified in acting upon the evidence of respondent No.1 regarding due execution of the cheque. Petitioner was not able to rebut the presumption under Sec.139 of the Act. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for 45 days. He was also directed to pay Rs.20,000/- as compensation and in default of payment to undergo simple imprisonment for 30 days. In appeal the substantive sentence was modified as simple imprisonment till rising of the court and compensation was converted as fine with default sentence for 30 days. Considering the nature of the offence and object of legislation there is little reason to interfere with the sentence as modified by the appellate court. 5. Learned counsel requested three months' time to deposit the fine in the trial court. Counsel submits that petitioner is in CRL. R.P. No.1661 of 2009 -: 3 :- financial difficulty and that it may not be possible for him to deposit the fine unless he is granted three months' time. In the facts and circumstances stated by the counsel I am inclined to allow the request. Resultantly, revision fails. It is dismissed. Petitioner is granted three months' time from this day to deposit the fine in the trial court as ordered by the appellate court failing which he shall undergo simple imprisonment for 30 days as ordered. Petitioner shall appear in the trial court on 28.8.2009 THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO. OF 2000 =================== O R D E R MAY, 2009