IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1917 of 2009() ------------------------------ CRA.399/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.2167/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... PETITIONER/ APPELLANT/ACCUSED -------------------------------------- V.C.JOY, S/O.VARGHESE, AGED 55 YEARS, UPPANYIL HOUSE, THALAYOLAPARAMBU.P.O., KOTTAYAM. BY ADV. SMT.K.G.SAROJINI SMT.N.C.SALINI RESPONDENT/COMPLAINANT /STATE --------------------------------- 1. K.K.SEBASTIAN, S/O.KURIAN, KANJIRATHUNKAL HOUSE, MUTTUCHIRA P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1917 of 2009 --------------------------------------- Dated this 22nd day of June 2009 ORDER This revision is in challenge of judgment of learned Sessions Judge, Kottayam in Criminal Appeal No.399 of 2008 confirming conviction of petitioner for offence punishable under Sec.138 of the Negotiable Instruments Act(for short, “the Act”) but modifying the substantive sentence. 2. I have dispensed with notice to respondent No.1 in view of the order I am proposing to pass in this revision which is not prejudicial to him. I heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. 3. This case arose from a private complaint preferred by respondent No.1 alleging that petitioner borrowed Rs.40,000/- from him on 06-03-05 and that for repayment of that amount issued Ext.P1, cheque dated 05-04-05. That cheque was dishonored for insufficiency of funds as proved by Ext.P2 and Ext.P3. On getting dishonor intimation respondent No.1 issued statutory notice to Crl.R.P.No.1917/09 2 petitioner on 21-10-05 intimating the dishonor and demanding payment of the amount. He accepted the notice on 27-10-05. Ext.P5 shows that notice was issued on 21-10-05 and Ext.P6 shows that notice was served on 27-10-05. Since he did not pay that amount respondent No.1 filed a complaint in the trial court. He gave evidence as PW1 and testified to his case. When questioned under Sec.313 of the Code of Criminal Procedure petitioner had no specific defence. But it was suggested to respondent No.1 when the latter was in the box that the documents are fraudulently created. It is not explained how the documents were 'fraudulently created'. Petitioner does not dispute that Ext.P1 contained his signature or that the cheque was drawn on the account maintained by him. Nothing was brought out to discredit the evidence of respondent No.1. A further fact is that petitioner in spite of getting statutory notice demanding payment of Rs.40,000/-, did not reply to it. It is in these circumstances that courts below acted upon the evidence of respondent No.1 and found in favour of respondent No.1 regarding due execution of the cheque. I find no reason to interfere with the Crl.R.P.No.1917/09 3 findings of the courts below which was rendered on a proper appropriation of the evidence and circumstances proved in the case. Petitioner has failed to rebut the presumption under Sec.139 of the Act. Hence conviction needs no interference. 4. Substantive sentence awarded to the petitioner has been modified by the appellate court as till rising of the court. Appellate court has confirmed the order passed by learned magistrate directing payment of compensation of Rs.40000/- to respondent No.1. The sentence as modified by the appellate court and the direction for payment of compensation with the default sentence are in accordance with the object of legislation and needed no interference. 5. Counsel requested three months time to deposit compensation in the trial court. Learned counsel explained the difficulties being experienced by the petitioner in raising the amount. Having regard to the submission of learned counsel and the circumstances stated, I am inclined to grant three months' time to the petitioner to deposit compensation. Crl.R.P.No.1917/09 4 6. Resultantly this revision fails. It is dismissed. Petitioner is granted three months' time from this day to deposit compensation in the trail court as ordered by the appellate court. In case of failure, petitioner shall undergo simple imprisonment as ordered by the appellate court. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. 7. Petitioner shall appear in the trail court on 24/09/09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/