IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST APRIL 2009 / 1ST VAISAKHA 1931 Crl.Rev.Pet.No. 1361 of 2009() ------------------------------ CRA.543/2007 of ADDL. SESSIONS COURT, FAST TRACK-II (ADHOC), THRISSUR ST.2476/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.R.VAREED,AGED 48,S/O.RAPPAI, CHITTILAPPILLY HOUSE,P O THEKUMKARA,PUNNAMPARAMBU, WADAKKANCHERY. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE OF KERALA ---------------------------------------------------------- 1. THE STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA AT ERNAKULAM. 2. M/S WADAKKANCHERY COMMERCIAL ENTERPRISES (REGISTERED),WADAKKANCHERY,REP.BY ITS POWER OF ATTORNEY HOLDER SABU, S/O.FRANCIS,CHITTILAPPILLY HOUSE, PO,PULLANIKAD,WADAKKANCHERY. PUBLIC PROSECUTOR SHRI P.A.SALIM FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1361 of 2009 -------------------------------------- Dated this the 21st day of April, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass. 2. Heard counsel for petitioner and the Public Prosecutor. 3. This revision arises from the judgment of learned Additional Sessions Court, Fast Track (Ahoc-II), Thrissur in Crl.Appeal No.543 of 2007 confirming the conviction of the petitioner under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the substantive sentence to imprisonment till rising of the court and payment of compensation as awarded by the learned magistrate. 4. Case of respondent No.2 is that petitioner owed Rs.1,14,749/- from it and for the discharge of that debt issued Ext.P1, cheque dated 20.1.2005 which on presentation was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.2 issued notice to the petitioner intimating the dishonour and demanding payment of the amount. Petitioner sent a reply (Ext.P6) according to respondent No.2, taking up false contentions. Hence, the complaint. Power of attorney holder of respondent No.2 gave evidence as PW1 and proved Exts.P1 to P7. Learned magistrate observed from the records that the petitioner has not even taken up a defence worth mentioning. Learned Crl.R.P.No.1361/2009 2 magistrate found from the evidence that petitioner issued Ext.P1, cheque in question for the discharge of the legally recoverable debt, placed reliance on the presumption under Section 139 of the Act as well and found petitioner guilty of the offence. That has been confirmed by the appellate court. 5. Though learned counsel for the petitioner contended that due execution of the cheque is not proved, I am unable to accept that contention. That, Ext.P1 contained the signature of the petitioner is not in dispute and proved by respondent No.2. As to the transaction which resulted in Ext.P1, PW1 has given evidence. Contention raised is that PW1 being a power of attorney holder was not competent to give evidence. It is seen from the judgments under challenge that PW1 has given evidence as to the facts within his knowledge and that there was no serious challenge to his evidence. Petitioner has not offered sufficient explanation as to how the cheque happened to be in the custody of respondent No.2. The presumption under Section 139 of the Act also comes to the aid of respondent No.2. Petitioner has not rebutted that presumption. Nothing is brought out to disbelieve the evidence of PW1. In these circumstances I do not find any illegality, irregularity or impropriety in the courts below holding the petitioner guilty of the offence punishable under Section 138 of the Act. 6. Learned counsel submitted that petitioner may be granted four months' time to deposit the compensation ordered by the courts below. 7. Though learned magistrate sentenced the petitioner to undergo simple imprisonment for three months apart from directing him to pay Crl.R.P.No.1361/2009 3 compensation, appellate court has modified the substantive sentence to simple imprisonment till rising of the court. The direction for payment of compensation was confirmed which in my view is legal and proper which required no interference. However, as requested by the petitioner and considering the amount involved I am inclined to grant four months' time to deposit the compensation in the trial court. Resultantly, this revision petition fails. It is dismissed. However, petitioner is granted four (4) months' time from today to deposit the compensation as awarded by the courts below in the trial court. Petitioner shall surrender in the trial court on 21.8.2009 to receive the sentence. Crl.M.A.No.4054 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks