IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.Rev.Pet.No. 1743 of 2009() ------------------------------ CRA.524/2008 of I ADDL. SESSIONS COURT, THRISSUR CC.806/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- RAVEENDRAN, S/O. CHIDAMBARAN, KUNDILAKULAMBU HOUSE, POTHAMPADAM, MUTHALAMADA P.O., VILLAGE, PALAKKAD DIST. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. A.C. SAJI, S/O. CHANDRASEKHARAN, ALAYIL HOUSE, KOTTANELLOOR, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, THRISSUR. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1743 of 2009 -------------------------------------- Dated this the 4th 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 I Additional Sessions Judge, Thrissur in Crl.Appeal No.524 of 2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) but modifying the substantive sentence to imprisonment till rising of the court while retaining the direction issued by the learned magistrate for payment of compensation. 3. Case of respondent No.1 is that petitioner borrowed Rs.3,10,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 15.3.2005. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are not disputed and proved by Exts.P3 and P4. Courts below found from the evidence that the cheque was dishonoured for insufficiency of funds and that the statutory notice was served on the petitioner. There is no reason to interfere with those findings. Crl.R.P.No.1743/2009 2 4. Respondent No.1 gave evidence as PW1 and testified to his case. he proved Ext.P6, letter sent by the petitioner to him. Contention of the petitioner is that he had no transaction with respondent No.1 and that he had given the cheque to one Jayadevan in the year 1992. Petitioner gave evidence in that line as DW1. Learned counsel contended that due execution of the cheque is not proved and that version of respondent No.1 that he raised the sum of Rs.3,10,000/- by borrowing the same from other persons cannot be believed. According to the learned counsel that itself indicated that respondent No.1 was not having sufficient means to lend the sum of Rs.3,10,000/-. 5. I have gone through Ext.P6 and copy of the deposition of petitioner as DW1 and respondent No. (PW1) which is made available to me by learned counsel for the petitioner. 6. As regards the raising of Rs.3,10,000/- respondent No.1 who is a teacher by profession claimed that he raised the amount by way of loan from his provident fund, Rs.14,000/- was taken from his own account in the Canara Bank and some amount was borrowed from his friends. It is by different occasions the sum of Rs.3,10,000/- was lent to the petitioner as requested by him. Petitioner on the other hand stated as DW1 that the cheque was given to Jayadevan in the year, 1992. Learned magistrate has observed that though petitioner cited four persons as witnesses he did not examine any of them. It is seen from the evidence of petitioner as DW1 that he even pleaded ignorance about the witnesses cited in his own witness schedule. Ext.P6 which is not disputed by the Crl.R.P.No.1743/2009 3 petitioner states that he had close contact with respondent No.1 and the latter used to lend money to him. In Ext.P6 petitioner stated that he needs Rs.10,000/- urgently for his purposes and by the borrowel of that amount total amount due to respondent No.1 comes to Rs.1,10,000/-. Petitioner also refers to his liability to pay interest on the said amount. Therefore, it is not as if petitioner had no transaction at all with respondent No.1. If respondent No.1, even as per Ext.P6 could advance Rs.1,10,000/- as loan, there is no reason why I should disbelieve the evidence of respondent No.1 as PW1 that he could raise Rs.3,10,000/-, be it by a loan from his provident fund or by drawing some amount from his own account or the rest of the amount being taken from his friends. Ext.P6 shows that petitioner was in dire need of money at the time he sent that letter. At the same time there is no reliable evidence to show that petitioner had any transaction with Jayadevan or that issued the cheque in question to said Jayadevan. 7. In the course of evidence petitioner even denied that Ext.P1 contained his signature. But learned magistrate was not inclined to accept that contention. It is to be remembered that even as per the version of petitioner, he had given Ext.P1 to Jayadevan in the year 1992. It is difficult to think that an unsigned cheque would have been taken from the account holder. Moreover, inspite of being informed about the dishonour of cheque issued for the discharge of liability of Rs.3,10,000/- petitioner did not reply taking up the contentions now he is urging. If petitioner had no transaction with respondent Crl.R.P.No.1743/2009 4 No.1 and had no liability, petitioner would not have refrained from replying to the notice served on him. These circumstances were taken into account by the courts below to hold in favour of due execution of the cheque and to hold that petitioner did not rebut the presumption under Section 139 of the Act. I do not find any illegality, irregularity or impropriety in the finding of the courts below requiring interference in this revision. 8. Substantive sentence of imprisonment for one year awarded by the learned magistrate was modified by the appellate court as simple imprisonment till rising of the court. That required no interference at the instance of the petitioner. 9. Trial court directed petitioner to deposit Rs.3,25,000/- as compensation payable to respondent No.1. In default of payment, petitioner was directed to undergo simple imprisonment for six months. Appellate court confirmed the direction for payment of compensation but modified the default sentence as simple imprisonment for three months. Considering the object of legislation and the loss caused to respondent No.1, there is no reason to interfere with that direction also. 10. Learned counsel requested six months' time to deposit compensation in the trial court. Considering the amount involved and the facts and circumstances of the case, I am inclined to grant four months' time to deposit the compensation in the trial court. Resultantly, this revision petition fails. It is dismissed. Petitioner is Crl.R.P.No.1743/2009 5 granted four months' time from today to deposit the compensation in the trial court for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for three months as ordered by the appellate court. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. Crl.M.A.No.5332 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks