IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 1727 of 2009() ----------------------------------------- CRA.595/2005 of II ADDL. SESSIONS COURT, KOLLAM CC.178/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- VIJAYAN .J, S/O.LATE JANARDHANAN, VAISAKHAM, THEKKEVILA, KOLLAM. BY ADV. MR.K.SIJU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------- 1. SUGATHAN, S/O.GANGADHARAN VAIDYAN, AVITTAM, PATTATHANAM, KOLLAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1727 OF 2009 ---------------------------------------- Dated this the 3rd 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 make and which is not prejudicial to him. 2. This revision is in challenge of the concurrent finding entered by courts below that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.50,000/- from him and for the discharge of that liability issued Ext.P1, cehque dated 12.4.2000. The cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue of notice by registered post is proved by Exts.P4 and P5. To prove that the registered notice was served on the petitioner, respondent No.1 produced Crl.R.P.No.,1727/09 2 Ext.P6, intimation letter issued by the postal authorities. Based on Ext.P4 to P6 courts below found that there was due service of notice on the petitioner. Those findings are not challenged before me and I do not find reason to interfere as well. 3. So far as execution of the cheque is concerned, respondent No.1 was examined as PW1. He has also deposed to the transaction which culminated in Ext.P1. As against that evidence, when questioned under Section 313 of the Code of Criminal Procedure, petitioner had no definite case about the execution of the cheque but, it was suggested to PW1 that there was no such transaction and that the cheque was fabricated. PW1 denied that suggestion. Courts below observed that there is no specific denial of signature in Ext.P1. There is also no reason to think that respondent No.1 forged the signature of the petitioner. Admittedly the cheque is drawn on the account maintained by the petitioner. He has no explanation as to how else the cheque happened to be in the custody of respondent No.1. He did not give any reply to the notice served on him. Nothing is brought out to disbelieve the Crl.R.P.No.,1727/09 3 evidence of respondent No.1 regarding the transaction and the execution of the cheque. In the circumstances, courts below are justified in acting upon the evidence of respondent No.1 and holding in favour of due exeuction of the cheque. Petitioner having failed to rebut the presumption under Section 139 of the Act, his conviction is unassailable. 4. Appellate Court modified the substantive sentence to imprisonment for one month and instead of fine of Rs.5,000/- awarded by the trial court, Appellate court directed the petitioner to pay compensation of Rs.50,000/- to respondent No.1 and in default, to undergo Simple Imprisonment for two months. So far as substantive sentence is concerned, I am satisfied that Simple Imprisonment till rising of the court is sufficient. There is however, no reason to interfere with the direction issued by the appellate court for payment of compensation or the default sentence provided. Counsel for petitioner requested three months' time to deposit compensation. Considering the amount involved and circumstances stated by learned counsel, I am inclined to grant two months' time to deposit compensation in the trial court. Crl.R.P.No.,1727/09 4 Resultantly, this revision petition is allowed in part to the following extent. i) Substantive sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the court. ii) petitioner is granted two months' time from today to deposit the compensation in the trial court as ordered by the appellate court. In case of failure, he shall undergo imprisonment as directed by the appellate court. iii) Petitioner shall appear in the trial court on 5.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.,1727/09 5