High Court Kerala High Court

Subash vs State Of Kerala on 26 August, 2009

Kerala High Court
Subash vs State Of Kerala on 26 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2706 of 2009()


1. SUBASH, S/O.PREMADASAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. K.T.RAJAPPAN, S/O.THANKAPPAN,

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :26/08/2009

 O R D E R
                         THOMAS P JOSEPH, J
                    ----------------------------------------
                       Crl.R.P.No. 2706 of 2009
                    ---------------------------------------
                 Dated this 26th day of August 2009

                                   ORDER

This revision is in challenge of judgment of learned Additional

Sessions Judge, Fast Track No-1, Alapuzha in Criminal Appeal No.240 of

2009 confirming conviction but modifying sentence of petitioner for

offence punishable under section 138 of the Negotiable Instruments

Act. According to respondent No.2, petitioner borrowed Rs.One Lakh

from him on 02-04-2007 and issued Ext.P1, cheque dated 02-04- 2007

for repayment of that amount. That cheque was dishonoured for

insufficiency of funds as proved by Ext.P2. Statutory notice was issued

to the petitioner but it was returned unclaimed inspite of giving

intimation. Issue and return of notice as aforesaid are proved by

Exts.P3 to P5. Respondent No.2 has given evidence as PW1 and stated

to his case. Petitioner claimed that he had borrowed Rs.10,000/- from

respondent No.2 and given a signed blank cheque which has been

misused.

2. It is contended by learned counsel that concurrent finding

entered by the courts below regarding due execution of the cheque is

not correct. It is not disputed that Ext.P1 is signed by petitioner and

drawn on his account. He does not dispute that he had financial

transaction with respondent No.2 and that it was in connection with

that, the cheque was given to respondent No.2. His contention is only

Crl.R.P.No.2706 of 2009 2

that the amount borrowed is only Rs.10000/- but, that contention is not

proved or probabilised. That the notice issued on behalf of respondent

No.2 was returned unclaimed inspite of intimation indicated that he

was aware the claim being made on behalf of respondent No.2.

Nothing was brought out to disbelieve the evidence of respondent

No.2. In these circumstances there is no reason to interfere with the

concurrent finding of the courts below regarding due execution of the

cheque and failure of petitioner to rebut the presumption. Conviction

is therefore legal and proper.

3. In modification of the sentence awarded by the court

below, learned Additional Sessions Judge sentenced the petitioner to

pay fine of Rs. One Lakh with default sentence of simple imprisonment

for one month. It was directed that the fine if realised will be paid to

respondent No.2 as compensation. Having regard to the nature of

offence I find no reason to interfere with the sentence as modified by

the appellate court at the instance of petitioner. Learned counsel for

petitioner requested eight months time to deposit fine. It is submitted

by learned counsel that due to financial difficulties petitioner is unable

to raise the amount immediately. Having regard to the facts and

circumstances of the case and the difficulties of petitioner expressed

by learned counsel as well as the amount involved I am inclined to

grant petitioner time till 28-01-2010 to deposit fine in the trial court.

Crl.R.P.No.2706 of 2009 3

Resultantly this revision petition fails. It is dismissed. Petitioner

is granted time till 28-01-2010 to deposit fine in the trial court. In case

of default, petitioner shall appear in the trial court on 30-01-2010 to

receive the sentence. Execution of warrant if any against the

petitioner will stand in abeyance till 30-01-2010.

THOMAS P JOSEPH, JUDGE
Sbna/