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. 1731 of 2009() ------------------------------ CRA.204/2006 of ADDL.SESSIONS COURT, FAST TRACK(ADHOC)-IV, THIRUVANANTHAPURAM. ST.58/2006 of JUICIAL FIRST CLASS MAGISTRATE VII, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------------------------- B.MURALEEDHARAN, GRACE COTTAGE, VAZHAYILA, KARAKULAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SRI.P.P.BIJU RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. S.RAMAKRISHNA PRASAD ASWIN, MANIKANTESWARAM, NETTAYAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1731 of 2009 -------------------------------------- Dated this the 3rd day of June, 2009. ORDER 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. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court (Adhoc)-IV, Thiruvananthapuram in Crl.Appeal No.204 of 2006 confirming conviction but modifying sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.1, petitioner borrowed Rs.80,000/- from him agreeing to repay the same by 30.3.2002 and issued Ext.P1, cheque dated 30.3.2002 for the discharge of that liability. 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. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. Ext.P1 is the cheque. Dishonour of the cheque for the above stated reason is proved by Exts.P2 and 3. Issue and service of notice are not disputed and are proved by Exts.P4 to P6. According to the petitioner, he had borrowed Rs.50,000/- from respondent No.1 in the year 2002 and a signed blank cheque was given as Crl.R.P.No.1731/2009 2 security. The amount borrowed was later repaid but the cheque was not returned by respondent No.1. Petitioner did not adduce evidence in that line. Courts below accepted the case of respondent No.1 and found the petitioner guilty of offence punishable under Section 138 of the Act. 4. It is contended by the learned counsel that due execution of the cheque is not proved. Respondent No.1 has given evidence about the transaction and execution of the cheque. Nothing is brought out to discredit the version of respondent No.1. Petitioner has not adduced any evidence or brought out any circumstance proving or probabilising his version. Petitioner did not also reply to the notice served on him. If he did not owe any money to respondent No.1, he would have replied to the notice. Considering the facts, circumstances and evidence let in by respondent No.1, that there is no evidence to show that petitioner had borrowed only Rs.50,000/- and that he did not even reply to the notice served on him, I am unable to accept that contention. There is no reason to interfere with the concurrent findings entered by the courts below as to the due execution of the cheque and the failure of the petitioner to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.80,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for one month. Appellate court confirmed the direction for payment of compensation and default sentence but modified the substantive Crl.R.P.No.1731/2009 3 sentence as simple imprisonment till rising of the court. There is no reason to interfere with the sentence awarded to the petitioner or the direction for payment of compensation. 6. Learned counsel requested three months' time to deposit the compensation in the trial court. Considering the amount involved and the facts and circumstances of the case, I am inclined to grant three months' time to deposit the compensation. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted three months' time from today to deposit the compensation in the trial court. Petitioner shall appear in the trial court on 7.9.2009 to receive the sentence. Crl.M.A.No.5289 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks