IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 Crl.Rev.Pet.No. 2708 of 2009() ------------------------------ CRA.282/2005 of II ADDL.SESSIONS COURT, KOLLAM CC.737/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- A.DHANAPALAN, S/O.ACHUTHAN VAIDYAN, PLAVILA VEEDU, EDATHARA MURI, KADAKKAL VILLAGE, KOLLAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. REGUNATHA PILLAI, DEEPABHAVANIL, KUMMIL MURI, KUMMIL VILLAGE, KOTTARAKKARA TALUK, KOLLAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2708 of 2009 -------------------------------------- Dated this the 21st day of August, 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 in the revision which is not prejudicial to him. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Kottarakkara in C.C.No.737 of 2003 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.3,50,000/- from him on 22.5.2002 and on his demanding repayment, petitioner issued Ext.P1, cheque dated 3.5.2003 on 3.4.2003. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 to P4. Service of statutory notice on petitioner is proved by Exts.P5 to P7. Respondent No.2 gave evidence as PW1 and claimed that petitioner borrowed Rs.3,50,000/- from him and for repayment of that amount issued the cheque. Contention of petitioner is that son of respondent No.2 was an employee of Headload Workers Welfare Fund Society of which petitioner was the president and using that occasion son of respondent No.2 stealthily collected his cheque. Courts below did not believe that explanation of petitioner and found him guilty on the finding that he issued the cheque for the discharge of a legally enforceable debt/liability. Crl.R.P.No.2708/2009 2 3. It is not disputed that Ext.P1, cheque contained signature of petitioner and is drawn on the account maintained by the petitioner. His contention that the cheque was stolen by son of respondent No.2 is not proved or probabilised. Petitioner has not replied to the notice served on him. If the cheque were stolen as claimed by petitioner and based on that a fairly big amount was claimed from him as per demand notice petitioner would have replied to that notice. It is only in the defence that such a case is set up by petitioner. Courts below in these circumstances were not inclined to accept the version of petitioner. Courts below found no reason to disbelieve respondent No.2. I find no reason to differ from the concurrent finding of fact entered by the courts below in the absence of any illegality or irregularity affecting the finding. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and payment of compensation of Rs.3,50,000/-. A default sentence of imprisonment for one month was also provided. Learned Additional Sessions Judge modified sentence as fine of Rs.3,50,000/- and in default of payment to undergo simple imprisonment for three months. Appellate court directed that fine if realized will be paid to respondent No.2 as compensation. Having regard to the nature of offence and the amount involved I find no reason to interfere with the sentence as modified by the appellate court or the default sentence at the instance of petitioner. 5. Learned counsel requested that petitioner may be granted six months’ time to deposit fine in the trial court. Learned counsel states that Crl.R.P.No.2708/2009 3 petitioner is not able to raise the amount immediately due to financial difficulties. Having regard to the facts and circumstances and the amount involved, petitioner is granted time till 20.1.2010 to deposit fine in the trial court as ordered by the appellate court. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 20.1.2010 to deposit fine in the trial court as ordered by the appellate court. In case fine is not deposited within the time aforesaid, petitioner shall appear in the trial court on 22.1.2010 to receive the default sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks