IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 1728 of 2009() ------------------------------ AGAINST JUDGMENT DTD 12.11.2008 IN CRA.271/2007 of SESSIONS COURT, PATHANAMTHITTA CC.1208/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ----------------------------------------------------------------------------------- RAJAN M.K. S/O. AYYAPPAN KESAVAN, MANAKUMKUNNIL HOUSE, KIZHAKEN OTHERS P.O. ERAVIPEROOR MURI, THIRUVALLA. BY ADV. MR.P.HARIDAS RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE ------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. D.JAYALAL,S/O.DIVAKARAN PILLAI, THADISSERIL VEEDU,KOZHIMALA P.O. VALLAMKULAM EAST, ERAVIPEROOR MURI VILLAGE, THIRUVALLA TALUK. PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1728 OF 2009 ---------------------------------------- Dated this the 3rd 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 faced trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). He was found guilty, convicted and sentenced to undergo Simple Imprisonment for one month to pay Rs.35,000/- as compensation. In appeal, conviction was confirmed, substantive sentence was modified as simple imprisonment till rising of the court and the amount of compensation to be deposited was modified as Rs.32,000/-. A default sentence for one month was also provided. Petitioner is aggrieved and hence this revision. 2. Case of respondent No.2 is that petitioner owed Rs.32,000/- to him and for the discharge of that liability issued the cheque. Ext.P1 is the cheque in question. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Crl. R.P.No.1728/09 2 That, respondent No.2 sent notice to the petitioner intimating dishonour and demanding payment of amount and that said notice was served on the petitioner are proved by Exts.P4 to P6. Petitioner neither paid the amount nor replied to the notice. Respondent No.2 gave evidence as PW1 and testifies to his case. Contention raised by the petitioner is that the cheque was given in connection with a chitty transaction. He had subscribed to a kuri run by respondent No.2 and at that time, given three signed blank cheques. One of those cheque leaves has been misused. Petitioner did not adduce evidence in proof or to probilise that contention. Courts below considered the evidence of respondents 2 and found in favour of due execution of the cheque. It is contended that due execution of the cheque is not proved. 3. Having regard to the facts of the case and evidence let in by respondent No.2, and the fact that petitioner did not even respond to the notice served on him, I am unable to accept that contention. It is not shown that petitioner gave any signed blank cheque as security for any other transaction. Nothing is brought out to disbelieve the evidence of PW1. Courts below on the evidence on record are justified in holding Crl. R.P.No.1728/09 3 that petitioner issued the cheque for discharge of legally enforceable debt/liability and that the presumption under Section 139 of the Act has not been rebutted by him. Hence there is no scope for interference with the conviction of the petitioner. 4. So far as sentence is concerned, there is little reason to interfere with the substantive sentence awarded by the appellate court or direction for deposit of compensation. 5. Counsel for petitioner requested four months’ time to deposit the compensation. Considering the amount involved and circumstances stated by learned counsel, I am inclined to grant two months’ time to deposit compensation in the trial court. Resultantly, this revision fails and it is dismissed. Petitioner is granted two months’ time to deposit the compensation in the trial court as ordered by the appellate court. He shall appear in the trial court on 6.8.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl. R.P.No.1728/09 4