IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 Crl.Rev.Pet.No. 1872 of 2009() ------------------------------------ JUDGMENT DATED 25.2.2009 IN CRA.764/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.928/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM ....................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ JOHNY,S/O.JACOB, JACOB HOUSE, VALIYATHURA, AIRPORT ROAD, VALLAKKADAVU P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.C.K.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. SIVASANKARAN,S/O.KOCHURAMAN, T.C.NO.42/1116(1),SANKAR NIVAS, SREEVARAHAM,MUTTATHARA, VALLAKKADAVU P.O. THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. KAMAPPA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.No.1872 OF 2009 ---------------------------------------- Dated this the 15th day of June, 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthapuram in Criminal Appeal No.764/2007 confirming conviction of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence. Respondent No.1 filed a complaint against the petitioner alleging that the latter borrowed Rs.1,25,000/- from him and for repayment of that amount, issued Ext.P1, cheque dated 24.9.2003 drawn on account maintained by the petitioner with HDFC bank. Respondent No.1 presented the cheque for encashment but it was dishonoured on 9.1.2004 as account was closed. Dishonour of the cheque for the said reason is proved by Ext.P2. Respondent No.1 claimed that Crl.R.P.No.1872/09 2 he issued Ext.P3, notice to the petitioner on 5.2.2004 intimating dishonour and demanding payment of the amount. Intimation about the registered notice was given to the petitioner but it was not claimed and was returned on 16.2.2004. Respondent No.1 gave evidence as PW1 and testified to his case. Contention raised by petitioner in the trial court is that he had taken a loan of Rs.25,000/- from respondent No.1 and given three blank cheques. He re-paid the entire amount. But after six months respondent No.1 demanded more interest and as he refused, presented the cheque. Courts below found that contention of the petitioner is not proved or even probabilised. Court below also found that petitioner issued the cheque for repayment of the amount he borrowed. That finding is under challenge in this revision. 3. That the cheque was dishonoured as account was closed is not disputed and proved by Ext.P2. That, Ext.P1 is drawn on the account of the petitioner and contained his signature are also admitted. According to the petitioner, he had borrowed only Rs.25,000/- from respondent No.1 and then given three blank cheques. It is also his case that he re-paid the entire amount. But there is no reliable evidence in support Crl.R.P.No.1872/09 3 of those contentions. Respondent No.1 denied that he got the cheque in the way suggested by the petitioner. Petitioner has not proved or probabilised the contention he advanced. Moreover that, registered notice containing demand for payment of the amount covered by the cheque was not claimed by petitioner in spite of intimation being served on him indicated that he was aware of the claim being made on behalf of respondent No.1. There is no reason to disbelieve the evidence of respondent No.1 as to the transaction and execution of the cheque. Petitioner could not discredit the version of respondent No.1. In the circumstances courts below are justified in holding that petitioner issued the cheque for the discharge of the legally enforceable debt/liability. I do not find reason to interfere with that finding. 4. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for three months, payment of fine of Rs.1,25,000/- and default of payment to undergo Simple Imprisonment for two months. In appeal the substantive sentence was modified as Simple Imprisonment till rising of the court. Sentence of fine with default sentence was confirmed. There is no reason or scope for interference. Crl.R.P.No.1872/09 4 5. Learned counsel sought five months' time to deposit the fine in the trial court. Considering the amount involved and the circumstances stated by learned counsel as to the financial condition of the petitioner, I am inclined to grant four months' time to deposit fine in the trial court as ordered by the appellate court. Resultantly, this revision fails. It is dismissed. Petitioner is granted four (4) months' time to deposit the fine in the trial court. Petitioner shall appear in the trial court on 19.10.2009 to receive the sentence. Warrant if any issued against the Petitioner will stand in abeyance till then. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1872/09 5