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. 1740 of 2009() ------------------------------ CRA.742/2007 of ADDL.SESSIONS COURT, KOTTAYAM ST.1110/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.K.BALAKRISHNAN, PUTHENPARAMBIL VEEDU, KOLLADU P.O., KOTTAYAM. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.D.REJIMON, PULICKAPARAMBIL HOUSE, MANARCADU P.O., KOTTAYAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1740 of 2009 -------------------------------------- Dated this the 4th day of June, 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 make and which is not prejudicial to him. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a complaint preferred by respondent No.2 alleging that the cheque (Ext.P1) dated 12.9.2006 issued by the petitioner was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. 3. Case of respondent No.2 is that petitioner borrowed Rs.80,000/- from him and for discharge of that liability issued Ext.P1, cheque dated 12.9.2006 which was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Respondent No.2 gave evidence as PW1 and testified to the transaction and execution of the cheque. Dishonour of the cheque for the said reason and issue and service of statutory notice are proved by Exts. P2 to P6. 4. When questioned under Section 313 of the Code of Criminal Procedure, petitioner claimed that he had no transaction with respondent No.2 Crl.R.P.No.1740/2009 2 but, had some transaction with one P.T.Das stated to be the brother of respondent No.2. He had borrowed money from said P.T.Das and issued signed blank cheque which has been misused by respondent No.2. Petitioner gave evidence as DW1 and testified to his case. DW2 is the son of the petitioner. He supported the petitioner. Ext.D1 is a notice dated 14.8.2006 and Ext.D2 is a summons issued in S.T.No.2360 of 2006. Courts below were not impressed by the evidence adduced by the petitioner, accepted the version of respondent No.2 and found in favour of due execution of the cheque. 5. It is true that petitioner has given evidence as DW1 and his son as DW2 has supported him. But, that by itself is not sufficient to discard the evidence given by respondent No.2. An instrument creating liability on the petitioner and apparently executed by him is produced by respondent No.2. Merely because it is shown that P.T.Das had some transaction with the petitioner, that did not mean that the case pleaded by respondent No.2 is not correct. There is no reliable evidence to show that the cheque in question is one which the petitioner had allegedly handed over to P.T.Das. Failure to send a reply to the notice is also material and relevant. Nothing was brought out to disbelieve the evidence of respondent No.2. It is admitted and proved that the cheque in question contained the signature of the petitioner and is drawn on the account maintained by him. In these circumstances courts below are justified in acting upon the evidence of respondent No.2 and holding in favour of due execution of the cheque. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Therefore, conviction is legal and Crl.R.P.No.1740/2009 3 proper and required no interference. 6. Substantive sentence awarded by the learned magistrate was modified by the appellate court as simple imprisonment till rising of the court. Instead of compensation ordered by the trial court, appellate court directed the petitioner to pay fine of Rs.80,000/- and in default of payment, to undergo simple imprisonment for one month. Appellate court directed that the fine if realised will be paid to respondent No.2 as compensation under Section 357(1) of the Code of Criminal Procedure. There is no reason to interfere with the sentence as modified by the appellate court. 7. Counsel for petitioner requested that petitioner may be granted three months' time to deposit the fine in the trial court. Considering the amount involved and the circumstances stated by the learned counsel, I am inclined to allow that request. Resultantly, this revision fails. It is dismissed. Petitioner is granted three months' time to deposit the fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 8.9.2009 to receive the sentence. Crl.M.A.No.5313 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks