IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 1812 of 2009() ------------------------------ CRA.416/2008 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM ST.189/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- PRASANNAKUMAR, KANIYAMKUNNEL, NEDUMGADAPPALLY P.O. BY ADV. SRI.M.J.THOMAS SMT.RUBY K.JOSE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------- 1. VINU.S., S/O.SREEDHARAN NAIR, NADUVILEDATHU HOUSE, KARUKACHAL. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1812 of 2009 -------------------------------------- Dated this the 10th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. A concurrent finding entered by the courts below that petitioner issued the cheque for the discharge of a legally enforceable debt/liability and failed to rebut the presumption appearing against him under Section 139 of the Negotiable Instruments Act (for short, “the Act”) is attempted to be unsettled in this revision at the instance of the petitioner/accused. 3. Respondent No.1 and petitioner are friends engaged in the same business. According to respondent No.1, petitioner took a loan of Rs.1,00,000/- from him in connection with the business of the petitioner during the last week of June, 2005 undertaking to repay the amount on demand. When he demanded repayment, petitioner issued Ext.P1, cheque dated 1.7.2005 in July, 2005 for the discharge of that liability. That cheque was presented for encashment but it was returned on 27.12.2005 for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount on 25.1.2006. Notice was served on the petitioner on 27.1.2006. Dishonour of the Crl.R.P.No.1812/2009 2 cheque for the above stated reason is proved by Exts.P2 and 3. Issue and service of statutory notice are proved by Exts.P4 and P5 series Findings entered by the courts below as to the cause of dishonour and service of statutory notice are not challenged before me. 4. Challenge in this revision is to the finding regarding execution of the cheque. Regarding that, respondent No.1 gave evidence as PW. He asserted that petitioner borrowed the amount from him during June, 2005 and issued the cheque in July, 2005. He also claimed that petitioner signed the cheque in his presence but it was filled up by a relative of petitioner who had accompanied him. According to the petitioner, he had borrowed only Rs.10,000/- from respondent No.1 and at that time had given a signed blank cheque as security. Petitioner did not adduce any evidence to show that his transaction with respondent No.1 was only in respect of Rs.10,000/- or had given signed blank cheque to respondent No.1 at that time. Petitioner did not also reply to the statutory notice served on him. Petitioner, a business man would not have refrained from giving a reply when notice was served on him claiming Rs.1,00,000/- as per a dishonoured cheque. Concededly, the cheque in question was given to respondent No.1 by the petitioner in connection with a money transaction. Petitioner was not able to discredit the evidence of respondent No.1. These circumstances have been taken into account by the courts below to hold that petitioner issued the cheque for discharge of a legally enforceable debt/liability. I find little reason to interfere with that finding in revision. Crl.R.P.No.1812/2009 3 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed payment of Rs.1,00,000/- as fine with default sentence of one month. In appeal, the fine part of the sentence was confirmed but the substantive sentence was modified as simple imprisonment till rising of the court. I do not find reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel requested six months' time to deposit the fine in the trial court. Learned counsel submitted that petitioner is a small trader and that it may be difficult for him to raise Rs.1,00,000/- immediately. Considering the amount involved and the facts and circumstances of the case, I am inclined to grant four months' time to deposit the fine in the trial court . Resultantly, this revision petition fails. It is dismissed. Petitioner is granted four months' time from today to deposit the fine in the trial court for payment to respondent No.1. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. Crl.M.A.No.5492 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks