IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2036 of 2009() ------------------------------------ AGAINST JUDGMENT DTD 22.1.2009 IN CRA.5/2008 of ADDL.SESSIONS COURT, KOTTAYAM AND AGAINST JUDGMENT DTD 10.12.2007 IN ST.1036/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .......................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------------------- SALU N.R., NEENDAKARA HOUSE, NEELAMPEROOR P.O., KOTTAYAM. BY ADV. MR.K.M.VARGHESE RESPONDENTS: RESPONDENTS/STATE & COMPLAINANT ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANOJ CHACKO, KALLUPALAM BANKERS, VALAYIL BUILDING, SASTRI ROAD, KOTTAYAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2036 of 2009 --------------------------------------- Dated this 09th day of July 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in criminal appeal No.5 of 2008 confirming conviction of petitioner for offence punishable under Sec.138 of Negotiable Instruments Act but modifying the sentence awarded by learned magistrate. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to respondent No.2. 2. According to respondent No.2 petitioner borrowed Rs.20,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 25.01.06. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 to P3. Respondent No.1 served statutory notice on petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Exts.P4 to P6. Finding of the court below regarding cause of dishonour and service of statutory notice are not challenged. 3. Respondent No.2 gave evidence as PW1 and testified his case. According to the petitioner, he used to take loans from respondent No.2 and on these occasions he used to give signed blank cheques as security. Such signed blank cheques happened to be in the custody of respondent No.2. Whatever amount he borrowed was repaid in daily instalments. The signed blank cheque leaf has been misused. Petitioner gave evidence as DW1 and produced Ext.D1, a pass book which is admittedly issued by respondent No.2. When respondent No.2 was confronted with Ext.D1 he denied that the transaction referred to Ext.D1 related to the transaction which culminated in the issuance of Ext.P1. Courts below found that there is nothing to show that Ext.D1 related to transaction which is the subject matter of this case. 4. It is not disputed that petitioner had transactions earlier also with respondent No.2. Hence mere production of Ext.D1 is not sufficient. Inspite of being served with statutory notice petitioner did not reply to the notice served on him. It is in these circumstances that courts below were not satisfied with the evidence produced by petitioner and found in favour of due execution of the cheque. On hearing learned counsel and going through the judgments under challenge I find no reason to take a different view. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for two months. Petitioner was directed to pay compensation of Rs.20,000/-(Rupees Twenty Thousand Only) and in default of payment to undergo simple imprisonment for one month. Appellate court modified the sentence as simple imprisonment till rising of the court and fine of Rs.20,000/- (payable to respondent No.2) with default sentence of imprisonment for one month. Having regard to the nature of offence and object of legislation I do not find reason to interfere with the sentence as modified by the appellate court. 6. Learned counsel requested that petitioner may be granted three months' time to deposit the fine. Learned counsel referred to difficulties being experienced by the petitioner in raising the amount immediately. Considering the circumstances stated by learned counsel I am inclined to allow the request. Resultantly this revision fails. It is dismissed. Petitioner is granted three (3) months' time from today to deposit the fine as ordered by the appellate court. Petitioner shall appear in the trial court on 12-10-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/