IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.REV.PET.NO. 2246 OF 2009() ----------------------------------------------- CRA.358/2007 OF I ADDL.SESSIONS COURT, ERNAKULAM CC.252/2005 OF JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT -------------------------------------------------- P.R.RAFEEQ, S/O. PAREETH PULLA AGED 38, PUTHUKKADAN, PARAPPURAM, PERUMBAVOOR, ERNAKULAM. BY ADV. SRI.PRAVEEN K. JOY RESPONDENT(S): COMPLAINANT ---------------------------------------------- 1. LEKHA BABU, KUMBAKAPPILLY HOUSE, PARAPPURAM PERUMBAVOOR, ERNAKULAM DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2246 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of July, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Ernakulam in Crl. Appeal No.358 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.2,00,000/- from her and for repayment of that amount issued the cheque (Ext.P1). That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2 and P3. Respondent No.1 served statutory notice on the petitioner which is proved by Exts.P4, P5 and P7. Exhibit P6 is the reply sent by petitioner. Respondent No.1 gave evidence as P.W.1 and stated that she gave Rs.50,000/- to petitioner in connection with construction of house and while so, Rs.2,00,000/- was borrowed from her by the petitioner for his personal purposes. For discharge of that liability petitioner issued the cheque. According to CRL. R.P. No.2246 of 2009 -: 2 :- the petitioner he was entrusted with the construction work of house of respondent No.1 and the cheque was given as security in connection with that. Petitioner did not adduce any evidence or bring out circumstances to prove or probabilise that contention. Courts below considered the evidence and observed that there is no reason to disbelieve the evidence of P.W.1. and found in favour of due execution of the cheque. 3. It is not disputed that Exhibit P1 is signed by petitioner and drawn on the account maintained by him. It is also not disputed that he had handed over the cheque to respondent No.1. His contention that he had given the cheque merely as security in connection with construction work entrusted to him is not proved or probabilised. It is in the above circumstances that courts below found in favour of due execution of the cheque. On going through the judgments under challenge and hearing counsel I find no reason to interfere with that finding. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.2,01,000/-. A default sentence of simple imprisonment for 45 days was also provided. Appellate court converted the sentence as fine of Rs.2,01,000/- with default sentence of simple imprisonment for four CRL. R.P. No.2246 of 2009 -: 3 :- months. It was directed that fine if realised will be given to respondent No.1 as compensation. Having regard to the nature of offence and amount involved I find no reason to interfere with the sentence as modified by the appellate court. 5. Learned counsel requested six months’ time to deposit the fine in the trial court. Counsel submits that petitioner is placed in poor financial situation and is unable to raise the amount immediately. Having regard to the circumstances stated by counsel and the amount involved I am inclined to grant time till 30.12.2009 to deposit fine as ordered by the appellate court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit fine in the trial court as ordered by the appellate court. In case fine is not deposited within the aforesaid period, petitioner shall appear in the trial court on 31.12.2009 to receive the default sentence. Until then execution of warrant against petitioner shall be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv