IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 Crl.Rev.Pet.No. 2722 of 2009() ------------------------------ CRA.212/2007 of I ADDL. SESSIONS COURT, PALAKKAD ST.4478/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- P.M.BABU, S/O.MANI, NEDUNGOTTIL HOUSE, CHITTUR, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT/1ST RESPONDENT/ COMPLAINANT: --------------------------------------------- 1. KRISHNANKUTTY NAIR, S/O.NARAYANANKUTTY NAIR, KAVARAMADU, MADATHIL HOUSE, CHITTUR, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2009 , ALONG WITH CRL.R.P.No.2721 OF 2009 THE COURT ON 21/08/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2722 of 2009 & Crl.R.P.No.2721 of 2009 --------------------------------------- Dated this 21st day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. These revisions arise from judgment of learned Judicial Magistrate of First Class, Chittor in S.T.No.4478 of 2005. That case arose on a complaint preferred by respondent No.1. He alleged that petitioner borrowed Rs.30000/- from him and for repayment of that amount issued Ext.P1, cheque dated 19-09-2005. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. That notice was returned as unclaimed. Issue and return of notice as aforesaid are proved by Exts.P4 series and P5. Respondent No.1 gave evidence as PW1 and stated that petitioner borrowed the amount and issued cheque for repayment of that amount. Contention of petitioner is that he had borrowed Rs.5000/- from respondent No.1 on an agreement to pay interest at the rate of 120% per annum and at that time signed blank cheques were taken from him. He repaid the amount but the cheque Crl.R.P.No.2722 of 2009 2 has been misused. Petitioner examined DW1 who stated so. Learned magistrate did not accept the evidence of DW1 and found petitioner guilty. Petitioner was sentenced to undergo simple imprisonment till rising of the court. There was a direction for payment of compensation of Rs.15000/- and default sentence of imprisonment for three months. Petitioner challenged his conviction and sentence in Criminal Appeal No.212 of 2007. Aggrieved as the entire cheque amount was not awarded as compensation, respondent No.1 preferred Crl.R.P.No.133 of 2007. Learned Additional Sessions Judge, Palakkad dismissed the criminal appeal but allowed the criminal revision to the extent that sentence was modified as fine of Rs.35000/- with default sentence of imprisonment for three months. It was directed that out of the fine if realised Rs.30000/- will be paid to respondent No.1 as compensation. The disposal of the appeal and revision are challenged in these revisions. It is contended by learned counsel that the due execution of the cheque is not proved. It is also contended that appellate court was not justified in imposing fine of Rs.35000/-. 3. So far as execution of Ext.P1, cheque is concerned petitioner does not dispute that he had borrowed money from respondent No.1 and that he had given the cheque in question though according to him in signed blank form. It is true that petitioner examined a witness, DW1 who stated so. It has come in evidence that Crl.R.P.No.2722 of 2009 3 DW1 is friend of petitioner. Apart from what DW1 stated, there is no evidence to show that petitioner had borrowed only Rs.5000/- or that he gave signed blank cheque. Ext.P5 shows and it is not disputed that intimation was given to the petitioner about the registered notice. Petitioner has not claimed it. That indicated that petitioner was aware of the nature of claim being made against him. On the facts and evidence learned magistrate found in favour of due execution of the cheque. That has been concurred by the appellate court. In the absence any illegality, irregularity or impropriety in the finding of the courts below, I find no reason to interfere with that finding. Petitioner has not rebutted presumption under section 139 of the Act. 4. As aforesaid, sentence has been modified by the appellate court as fine of Rs.35000/- and default sentence of imprisonment for three months is also provided. Learned Additional Sessions Judge directed that out of the fine if realised, Rs.30000/- will be given to respondent No.1 as compensation. Evidence which the courts below accepted show that petitioner borrowed Rs.30000/- from respondent No.1 and for repayment of that amount issued the cheque. The amount borrowed being Rs.30000/-, there was no necessity to reduce compensation payable as Rs.15000/-. Appellate court exercised revisional power to modify sentence as fine of Rs.35000/- out of which Rs.30000/- was to be given to respondent No.1 as compensation. Crl.R.P.No.2722 of 2009 4 There is no reason to interfere. 5. Learned counsel has requested that petitioner may be granted four months' time to deposit the fine. He stated that petitioner is not able to raise the amount immediately on account of financial difficulties. Considering the circumstances stated by learned counsel I am inclined to grant time till 19-12-2009 to deposit fine as ordered by the appellate court. Resultantly these revision petitions fail and are accordingly dismissed. Petitioner is granted time till 19-12-2009 to deposit the fine in the trial court as ordered by the appellate court. In case of default, petitioner shall appear in the trial court on 21-12-2009 to receive the default sentence. Execution of warrant if any against the petitioner will stand in abeyance till 21-12-2009. THOMAS P JOSEPH, JUDGE Sbna/