IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2337 of 2009() ------------------------------ CRA.954/2007 of ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II) KOZHIKODE CC.332/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ABOOBACKER.P.P,AGED 38 YEARS, KOODATHANKANDIYIL HOUSE,PARANNUR.PO,KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/RESPONDENTS/ COMPLAINANT & STATE ---------------------------------- 1. M/S.SHRIRAM INVESTMENTS LTD,CALICUT, REP;BY POWER OF ATTORNEY HOLDER,MR.PRAKASH, S/O.K.MADHAVAN,SREEPADAM BUILDINGS,CALICUT-32. 2. STATE OF KERALA REP:BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2337 of 2009 -------------------------------------- Dated this the 23rd day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode in Crl.Appeal No.954 of 2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner faced trial in the court of learned Judicial First Class Magistrate-IV, Kozhikode in C.C.No.332 of 2005. Case of respondent No.1 which is a private limited company engaged in business of lease and hire purchase is that at the request of petitioner a loan of Rs.2,50,000/- was sanctioned to him, he availed Rs.1,10,000/- agreeing to repay the amount in instalments but defaulted payment of instalments. At a time when Rs.68,000/- was due from petitioner he issued Ext.P3, cheque dated 30.3.2005 for discharge of that debt. That cheque was dishonoured as account was closed and since there is no sufficient fund in the account as proved by Exts.P4 and P5. Service of statutory notice on petitioner is proved by Exts.P6 to P8. Ext.P9 is the reply. PW1, authorised by Ext.P1, power of attorney gave evidence on behalf of respondent No.1. He Crl.R.P.No.2337/2009 2 proved Ext.P10, hypothecation agreement executed by petitioner. Petitioner contended that at the time of availing loan a signed blank cheque was obtained by respondent No.1 which has been misused. Courts below found in favour of due execution of the cheque. It is contended by learned counsel that due execution of the cheque is not proved. It is also contended that what exactly the amount actually due to respondent is not in evidence. 3. Section 139 of the Act provides for a presumption in favour of the holder of the cheque that such holder received the cheque for the discharge, in whole or in part of any debt or other liability. It is true, it is open to a drawer of the cheque to dispute the liability as well as the quantum. In this case, petitioner denied execution of the cheque as well as quantum. So far as execution of the cheque is concerned, it is not disputed that Ext.P3 contained the signature of the petitioner, is drawn on the account he had maintained with the bank and he had given that cheque to respondent No.1 in connection with the transaction. It is true that mere admission or proof of signature does not tantamount to admission or proof of the instrument as such but it went a long way in proving due execution of the cheque. Apart from suggesting that respondent No.1 obtained signed blank cheque at the time of transaction, there is nothing on record to hold so. Nothing is brought out in the evidence of PW1 on behalf of respondent No.1 to disbelieve his version regarding execution of the cheque. Therefore, courts below are justified in holding in favour of due execution of the cheque. 4. Then, presumption under Section 139 of the Act follows. It is then Crl.R.P.No.2337/2009 3 for petitioner to rebut that presumption by appropriate means. In this case, petitioner has not produced any document to show the amount he allegedly paid to respondent No.1. Assuming that he is not in possession of any such document, he could have summoned such documents from the possession of respondent No.1 which also has not been done. In other words, petitioner has failed to rebut the presumption under Section 139 of the Act as to the passing of the consideration as well as the extent of liability referred to in Ext.P3. In the circumstances I do not find reason to interfere with the conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month and directed payment of compensation of Rs.68,000/- to respondent No.1. A default sentence of imprisonment for one month was provided. Appellate court did not interfere with the conviction and sentence. Learned counsel submitted that substantive sentence imposed is excessive and requested that petitioner may be granted three months’ time to deposit compensation. According to the learned counsel petitioner is unable to raise the amount immediately on account of financial difficulties. 6. Having regard to the nature of offence and object of legislation, I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation at the instance of petitioner. Considering the circumstances stated by learned counsel, petitioner is granted three months’ time to deposit compensation. In case of default, petitioner has to undergo simple imprisonment for two months. Crl.R.P.No.2337/2009 4 Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months’ time to deposit compensation in the trial court as ordered by that court. In case of failure, petitioner has to undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 26.10.2009. THOMAS P.JOSEPH, Judge. cks