IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.REV.PET.NO. 2064 OF 2009() --------------------------------------------- CRA.405/2008 OF ADDL. SESSIONS COURT, ALAPPUZHA CC.729/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- FAISAL, S/O.AMANULLA, ARAYANPARAMBU, VATTAYAL WARD, THIRUVAMPADY P.O., ALAPPUZHA. BY ADV. SRI.ABDUL JALEEL.A SMT.M.A.SULFIA RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. HARRISON, S/O.RAFEAL, MEDARATHIL HOUSE, VADACKAL WARD, THIRUVAMPADY, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, KOCHI-31. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2064 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of June, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, Alappuzha in Crl.Appeal No.405 of 2008 confirming conviction and sentence entered on petitioner for offence punishable under Section 138 of the negotiable Instruments Act. 2. Case arose on a complaint preferred by respondent No.1. He claimed that petitioner issued Ext.P1, cheque for 40,000/- in discharge of a debt. That cheque was dishonoured for insufficiency of funds. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Dishonour of the cheque for reason stated above and issue and service of notice on petitioner are proved by Exts.P2 to P5. Findings entered by the courts below in that regard are not under challenge. Respondent No.1 gave evidence as P.W.1 and stated about the transaction between himself and petitioner leading to the latter issuing the cheque (Ext.P1). It is seen from the judgments under challenge that P.W.1 was not cross-examined and in spite of giving several opportunities petitioner did not attempt to challenge the CRL. R.P.No.2064 of 2009 -: 2 :- evidence of P.W.1. After he was questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) petitioner filed an application under Sec.31 of the Code to recall P.W.1 for further cross- examination. That application was allowed on 22.12.2007 on terms of course. Petitioner did not pay the cost and avail the opportunity to cross-examine P.W.1. It is therefore clear that petitioner did not want to cross-examine P.W.1. What remained is the unchallenged version of P.W.1 regarding the transaction and due execution of the cheque. Petitioner did not reply to the statutory notice. 3. It is seen from the judgment of learned magistrate that without serious consideration of the evidence on record, finding was entered as to the guilt of petitioner. But I find that learned Additional Sessions Judge has gone through the entire evidence, considered the contentions of petitioner when questioned under Sec.313 of the Code and after proper evaluation came to the conclusion that interference with the conviction of petitioner is not warranted. I have gone through the judgment of learned Additional Sessions Judge and considered the submissions made by learned counsel for petitioner. In the light of the circumstances stated above, there is no reason to disbelieve the evidence of respondent No.1 regarding the transaction CRL. R.P.No.2064 of 2009 -: 3 :- and execution of the cheque. Due execution of the cheque is proved. Petitioner was not able to rebut the presumption under Sec.139 of the Act. Hence conviction of petitioner required no interference. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment till rising of the court and directed payment of Rs.40,000/- as compensation and in default of payment to undergo simple imprisonment for three months. Appellate court did not interfere with the sentence imposed on the petitioner by the trial court, direction for payment and the default sentence. I do not find reason to interfere with the sentence, direction for payment of compensation or the default sentence imposed. 5. Counsel for petitioner requested six months’ time to deposit the compensation. Counsel submits that petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel I am inclined to grant three months’ time to the petitioner to deposit compensation in the trial court. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months’ time from this day to deposit the compensation in the trial court. It is made clear that it shall be sufficient compliance of the direction for deposit of compensation if petitioner CRL. R.P.No.2064 of 2009 -: 4 :- paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period of three months. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv