IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2722 of 2009()
1. P.M.BABU, S/O.MANI,
... Petitioner
Vs
1. KRISHNANKUTTY NAIR,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/08/2009
O R D E R
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/