IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 1722 of 2009() ------------------------------ CRA.788/2004 of ADDL.SESSIONS COURT, FAST TRACK COURT - III, TRIVANDRUM ST.65/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------ S.RANGANATHAN, TC.72/2775, SREE PANDURANGA, OPPOSITE KSEB, ENCHAKKAL, THIRUVANANTHAPURAM. BY ADV. MR. G.SUDHEER RESPONDENTS/COMPLAINANT & STATE:- ---------------------------------------------- 1. J.VIJAYAKUMAR, T.C.IX/1971, K-68, KOCHIKATTAKKAL VEEDU, KOCHAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1722 OF 2009 ---------------------------------------- Dated this the 2nd 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 pass in this revision which is not prejudicial to him. 2. Accused in S.T.No.65/2003 of the Court of learned Judicial First class magistrate, Thiruvananthapuram is before me in revision. He faced trial for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on a complaint preferred by respondent No.1 alleging that the cheque (Ext.P1) dated 20.5.2000 issued by the petitioner for the discharge of a legally enforceable debt/liability was dishonoured for insufficiency of funds and that in spite of service of statutory notice intimating dishonour and demanding payment, petitioner did not pay the amount. Courts below found in favour of due execution of the cheque and convicted the petitioner. It is contended by learned counsel that conviction of the petitioner is not legal or proper. Crl.R.P.No.1722/09 2 2. Respondent No.1 has given evidence as PW1 and testified to his case. Dishonour of the cheque for reason stated above is proved by Ext.P2. It is admitted that notice was served on petitioner. Ext.P5 is the copy of reply issued by the petitioner. In Ext.P5 he contended that he received only Rs.1 ½ lakhs from respondent No.1 but a cheque for Rs.3 ½ lakhs including the principal amount, interest and penal interest in case of default was obtained from him. Petitioner, however did not adduce any evidence to prove or probabilise that contention. Courts below acting upon the evidence of PW1 and Exts.P1 to P5 found in favour of due execution. 3. That the cheque was issued by petitioner is admitted by him in Ext.P5. It is also admitted that the cheque was drawn on the account maintained by the petitioner. Petitioner admits that he had borrowed money from respondent No.1, according to him, only Rs.1 ½ lakhs. Petitioner also admits that he gave the cheque for Rs.3 ½ lakhs but according to him, that amount is made up of the principal amount of Rs.1 ½ lakhs, interest and penal interest. Petitioner did not produce any evidence to show that he Crl.R.P.No.1722/09 3 borrowed only Rs.1 ½ lakhs as against the sum of Rs.3 ½ lakhs for which he issued the cheque. Nothing is brought out to disbelieve the evidence of respondent No.1. On the facts and evidence let in by respondent No.1, there is reason to interfere with the conviction of the petitioner. 4. Appellate court modified the substantive sentence to imprisonment till rising of the court which requires no interference. Trial court directed petitioner to deposit compensation of Rs.3 ½ lakhs. Appellate Court converted compensation into fine of Rs.3 ½ lakhs with default sentence of three months. There is no reason to interfere with the sentence as modified by the appellate court. 5. At this stage, learned counsel for petitioner requested for eight months’ time to deposit the fine in the trial court. Learned counsel submitted that petitioner is suffering from stroke, is aged 58 years and has lost his eye sight. Considering the circumstances stated by the learned counsel for petitioner and the amount involved, I am inclined to grant four months’ time to deposit the fine as awarded by the appellate court. Crl.R.P.No.1722/09 4 Resultantly, this revision fails and it is dismissed. Petitioner is granted four months’ time from today to deposit the fine in the trial court. He shall appear in the trial court on 6.10.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1722/09 5