IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.REV.PET.NO. 203 OF 2007() ------------------------------------------ CRA.126/2005 OF I ADDL. SESSIONS COURT, PALAKKAD ST.1718/2004 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- P.JALALUDHEEN, AGED 50 YEARS, S/O. AHAMMED HAJI, 25/505, MANJAKULAM, PALAKKAD. BY ADV. SRI.T.K.KUNHABDULLA RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT --------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.A.JAFFER, AGED 48 YEARS, S/O. K.E.ABDUL KADER, K.S.SAW MILL, VITHUNNI ROAD, PALAKKAD. ADV. SRI.H.BADARUDDIN FOR R.2 BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.203 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, Palakkad in Crl. Appeal No.126 of 2005 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (foro short, “the Act”). According to respondent No.2, petitioner borrowed Rs.2,00,000/- from him and issued Ext.P1, cheque dated 10.2.2004. Its dishonour as account was closed is proved by Exts.P2 and P3. Service of notice on petitioner is proved by Exts.P4 series. Petitioner contended that he had no transaction with respondent No.1 and that the signed blank cheque leaf he lost was misused by respondent No.2. Learned magistrate found against the contention raised by petitioner and found him guilty. That finding was confirmed by the learned Sessions Judge. It is contended that due execution of the cheque is not proved. 2. Respondent No.1 gave evidence as P.W1. He stated that he is a businessman by profession and that petitioner borrowed Rs.2,00,000/- from him. In cross-examination he stated that he has no licence in his favour for any business, nor is he paying any sales tax, income tax or profession tax. He admitted that he had no landed CRL. R.P. No.203 of 2007 -: 2 :- properties in his name but he claimed that he has accounts in two banks and at the time he was giving evidence he had Rs.10-15000/- in those accounts. It is also his case that petitioner is known to him for about four years and he advanced Rs.2,00,000/- without getting any document from him. It is on the above evidence that it is contended that due execution of the cheque is not proved. 3. Drawal of presumption under Sec.139 of the Act arise only when due execution of the cheque is either admitted or proved. Burden of proving due execution of the cheque is on respondent No.2. It is not disputed that Ext.P1 contained the signature of petitioner and that cheque was drawn on the account maintained by him. I am aware that admission or proof of signature did not amount to admission or proof of due execution of the cheque but it would go a long way in proving due execution of the cheque. Respondent No.2 has given evidence regarding the transaction leading to execution of the cheque. Petitioner did not reply to the statutory notice. Mere fact that respondent No.2 has no licence in his name for conducting business or is not paying income tax, sales tax, profession tax, etc., or that he has no landed properties in his name are not sufficient to hold that he was incapable of raising money. According to respondent No.2, he is engaged in business. That he has stated in his complaint and in the chief examination. According to petitioner, signed blank cheque leaf CRL. R.P. No.203 of 2007 -: 3 :- was stealthily taken by respondent No.2 and made use of. If that be so, petitioner would have replied to the notice which he did not do. There is no evidence or circumstance to hold that signed cheque leaf happened to be in the custody of respondent No.2 in the circumstances pleaded by petitioner. Courts below found in favour of due execution of the cheque. I find no reason to differ. Petitioner was not able to rebut the presumption under Sec.139 of the Act. There is no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month. Petitioner was directed to pay compensation of Rs.2,00,000/- to respondent No.1. Default sentence of imprisonment for six months was also provided. Appellate court did not interfere with the conviction, direction for payment of compensation or the default sentence. 5. Learned counsel submitted that substantive sentence imposed is excessive. Learned counsel requested six months’ time to deposit the compensation as the petitioner is unable to raise the amount immediately. Having regard to the nature of offence and amount involved I am inclined to modify the substantive sentence as simple imprisonment till rising of the court. There is however, no reason to interfere with the direction for payment of compensation or the default sentence. Considering the circumstances stated by CRL. R.P. No.203 of 2007 -: 4 :- learned counsel petitioner is granted time till 30.12.2009 to deposit the compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 30.12.2009 to deposit the compensation in the trial court as ordered by that court. (iii) It is made clear that it shall be sufficient compliance with the condition for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv