IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 Crl.Rev.Pet.No. 1635 of 2009() ------------------------------ CRA.407/2008 of SESSIONS COURT, ALAPPUZHA CC.89/2007 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ MANOJ, AGED 42 YEARS, S/O. GANGADHARAN, THIRUVANDOOR, CHENGANNUR, PROPRIETOR, EVERFRESH TRADERS, NEAR POST OFFICE, AMBALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------- 1. VINOD, S/O. VISWANATHAN, VADAKKETHATTARU PARAMBIL, PURAKKAD.P.O, AMBALAPPUZHA. 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 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1635 of 2009 -------------------------------------- Dated this the 24th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. Heard counsel for petitioner and Public Prosecutor who takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Alappuzha in Crl.Appeal No.407 of 2008 arising from the judgment in C.C.No.89 of 2007 of the court of learned Judicial First Class Magistrate, Ambalapuzha. Petitioner was convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act:”) and sentenced to undergo simple imprisonment for six months and payment of fine of Rs.10,000/-. Appellate court modified the sentence. According to respondent No.1, petitioner availed loan from him to the tune of Rs.1,80,000/- and for repayment of that amount issued Ext.P1, cheque dated 1.12.2006. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2 and evidence of PW2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1. He produced Ext.P6, pass book to show that he had sufficient funds in his account at the time of transaction. According to the petitioner one Anil and Sunil who were working as salesmen in his vegetable Crl.R.P.No.1635/2009 2 shop availed a loan from respondent No.1 to the tune of Rs.10,000/-. As security for that transaction, petitioner gave Ext.P1, cheque in signed blank form. That cheque was misused. Petitioner examined DWs 1 and 2. DW1 is one of the salesmen in the shop of the petitioner. He supported the petitioner. DW2 is an advocate and social activist who is said to have mediated the dispute between the parties. Courts below were not impressed by the evidence of petitioner and found him guilty. It is contended that conviction of petitioner is not legal or proper. 3. It is true that DW1 who is none other than the employee of the petitioner supported him. But the evidence of DW2, mediator is not of any assistance to the petitioner. Though he stated in chief examination that petitioner and respondent No.1 had been to him for mediation in cross examination he stated that he had not talked to respondent No.1. Instead, he talked to one of the employees of petitioner and his sister. Therefore, the mediation talk referred to by DW2 is not involving respondent No.1 and that evidence is not useful to the petitioner. On the other hand, in chief examination DW2 stated that for the purpose of meeting the requirements of the employees petitioner had borrowed money from respondent No.1 and given cheque. He does not know what exactly was the amount borrowed. Thus, whatever stated Crl.R.P.No.1635/2009 3 by DW2 in chief examination corroborates the version of respondent No.1 regarding transaction and execution of cheque. Ext.P6 and evidence of DW2 show that a sum of Rs.1,80,000/- was transferred to the account of petitioner from the account of respondent No.1 on 2.8.2006. That further corroborates the evidence of respondent No.1. On going through the judgments under challenge and heading learned counsel I find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months and payment of fine of Rs.10,000/-. Learned Sessions Judge while modifying substantive sentence as simple imprisonment till rising of the court sentenced petitioner to pay fine of Rs.1,80,000/- and in default of payment to undergo simple imprisonment for six months. It was also directed that fine if realized will be paid to respondent No.1 as compensation under Section 357(1) of the Code of Criminal Procedure. 5. Learned counsel for petitioner requested that petitioner may be granted six months’ time to deposit fine. He stated that petitioner is unable to raise the amount immediately on account of financial difficulties. Considering the facts and circumstances of the case and the amount involved petitioner is granted time till 22.1.2010 to deposit fine in the trial court. Crl.R.P.No.1635/2009 4 Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 22.1.2010 to deposit fine in the trial court as ordered by the appellate court. Petitioner shall appear in the trial court on 25.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks