IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2324 of 2009() ------------------------------ CRA.723/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1509/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- HARIDASAN, S/O. MUKAMI AMMA, KOORKANCHERRY VILLAGE, VADUKARA DESOM, PROPRIETOR, SASTHA TYRE MOULD WORKS. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------ 1. BEENA, W/O. KUNJAPPAN, ANAMTHURUTHY HOUSE, KIZHEKKE CHALAKUDY VILLAGE, CHALAKUDY DESOM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2324 of 2009 --------------------------------------- Dated this 23rd day of July 2009 ORDER Petitioner is aggrieved by the concurrent finding entered by the court below regarding due execution of a cheque for legally enforceable debt/liability and has come up in revision. He faced trial in the court of learned Judicial Magistrate of First Class, Chalakkudy in C.C.No.1509 of 2003 for offence punishable under section 138 of the Negotiable Instruments Act. Complaint of respondent No.1 is that petitioner borrowed Rs.50000/- from her and for repayment of that amount issued Ext.P1, cheque dated 22-09-2003. Its dishonour as account was closed is proved by Ext.P2 and evidence of PW2 and not disputed before me. Service of statutory notice on petitioner is proved by Exts.P3, P5 and P6. Ext.P4 is the reply of petitioner. According to the petitioner, he had no transaction with respondent No.1 and instead, had a transaction with DW2 and given signed blank cheque to DW2. That cheque was collected by the husband of respondent No.1 who was working as an accountant in the institution of petitioner. Petitioner gave evidence as DW1. Ext.D1 to D4 are marked on the side of petitioner. 2. So far as execution of the cheque is concerned, respondent No.1 has given evidence as PW1 and asserted that petitioner borrowed Rs.50000/- from her and issued the cheque. Petitioner as DW1 stated Crl.R.P.No.2324 of 2009 2 that husband of respondent No.1 worked as an accountant in his institution, due to husband of respondent No.1 not properly keeping the accounts he had to pay Rs.55000/- to the Sales Tax Department and thereafter husband of respondent No.1 was dismissed from service. He obtained signed blank cheque leafs from DW2 to whom petitioner owed Rs.20000/-. DW2 stated that petitioner owed Rs.20000/- to him and on 14-08-1999 petitioner gave him a signed blank cheque. He claimed that he produced that cheque in the bank and it was honoured. Ext.D1 is the counter foil of the cheque book of petitioner produced to show that Ext.P1, the cheque was given to DW2. Ext.D2 is the pass book of petitioner with the drawee bank. Learned magistrate has observed that the writings on the relevant counter foil in Ext.D1 as if cheque was given to DW2 appeared to be in very fresh ink though according to petitioner he had given the cheque to DW2 some time in the year 1999. Learned magistrate observed that the relevant entry in the counter foil was entered only recently. So far as evidence of petitioner (DW1) and PW2 is concerned it came out from Ext.D2, pass book that a cheque for Rs.20000/- given by petitioner to DW2 was encashed by the latter. If that be so, there was no possibility of the cheque remaining with and DW2 to be given to the husband of respondent No.1. There was no proper explanation for this aspect of the matter from the side of the petitioner. In view of that, courts below Crl.R.P.No.2324 of 2009 3 rejected the contention of petitioner. 3. It is contended by learned counsel that learned magistrate has convicted petitioner for the reason that evidence of petitioner cannot be believed. No doubt, being a prosecution for an offence, respondent No.1 had to prove due execution of the cheque. The question of rebuttal of presumption under section 139 of the Act arises only after admission or proof of due execution of the cheque. Therefore, merely for the reason that contention of petitioner is not acceptable, one cannot find in favour of respondent No.1 regarding due execution of the cheque. So far as the due execution of the cheque is concerned, there is evidence of respondent No.1. Then the question is whether the case of petitioner can be said to be proved or probabilised. Regarding that I have pointed out the glaring improbability in the evidence let in by petitioner which stands not explained. Therefore courts below are justified in observing that contention raised by petitioner cannot be accepted. Nothing is brought out to disbelieve the evidence of respondent No.1 regarding due execution of the cheque. I find no reason to interfere. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There is a direction for payment of compensation of Rs.50000/- to respondent No.1. Default sentence of imprisonment for three months was also provided. Appellate court Crl.R.P.No.2324 of 2009 4 modified the substantive sentence as simple imprisonment till rising of the court while retaining the direction for payment of compensation and default sentence. Having regard to the nature of the offence and object of legislation there is no reason to interfere either with the substantive sentence or the direction for payment of compensation and the default sentence at the instance of petitioner. Learned counsel has requested three months' time for the petitioner to deposit the compensation. It is submitted that on account of financial stringency petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel I am inclined to grant three months' time as prayed for. Resultantly this revision fails. It is dismissed. Petitioner is granted time till 23-10-2009 to deposit compensation. Petitioner shall appear in the trial court on 26-10-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 26-10-2009. THOMAS P JOSEPH, JUDGE Sbna/