High Court Kerala High Court

Shajan P.Vincent vs State Of Kerala Represented By The on 2 July, 2009

Kerala High Court
Shajan P.Vincent vs State Of Kerala Represented By The on 2 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2120 of 2009()


1. SHAJAN P.VINCENT, AGED 34 YEARS,
                      ...  Petitioner

                        Vs



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

2. JIMMY GEORGE, AGED 31 YEARS,

                For Petitioner  :SRI.A.T.ANILKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :02/07/2009

 O R D E R
                             THOMAS P. JOSEPH, J.
                           --------------------------------------
                             Crl.R.P.No.2120 of 2009
                           --------------------------------------
                      Dated this the 2nd day of July, 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 in this

revision which is not prejudicial to him.

2. This revision is in challenge of judgment of learned Additional

Sessions Judge (Adhoc-I), Ernakulam in Crl.Appeal No.573 of 2007 confirming

conviction but modifying sentence imposed on petitioner for offence punishable

under Section 138 of the Negotiable Instruments Act (for short, “the Act”) as one

of fine. Respondent No.2 filed a private complaint alleging that petitioner

borrowed Rs.70,000/- from him and on demanding repayment issued Ext.P1,

cheque dated 24.9.2004 for repayment of that amount. That cheque on

presentation was dishonoured for insufficiency of funds as proved by Exts.P2

and P3. Respondent No.2 issued statutory notice to the petitioner intimating

dishonour and demanding payment of the amount. Issue and service of notice

on petitioner are proved by Exts.P4 to P6. Finding of the courts below

regarding cause of dishonour and issue and service of notice are not challenged

in this revision. Contest is regarding the execution of the cheque. Petitioner

contends that he had not issued any cheque in favour of respondent No.2.

3. Regarding the transaction which led to the execution of the

Crl.R.P.No.2120/2009

2

cheque respondent No.2 has given evidence. It is seen that petitioner did not

dispute his signature in Ext.P1. He only contended that he had given the

cheque as security to some other person. He however did not explain how that

cheque happened to be in the custody of respondent No.2. Respondent No.2

denied the suggestion that the cheque was not issued to him. Petitioner did not

adduce any evidence or bring out any circumstance to prove or probabilise his

contention. He did not also reply to the notice served on him. Nothing is

brought out to disbelieve the evidence of respondent No.2. It is in the above

circumstances that courts below found in favour of due execution of the cheque.

I do not find any illegality, irregularity or impropriety in the judgments under

challenging requiring interference with the finding regarding execution of the

cheque. Petitioner was not able to rebut the presumption under Section 139 of

the Act and hence his conviction and sentence are legal and proper and

required no interference.

4. Learned magistrate sentenced the petitioner to undergo simple

imprisonment for six months. He was directed to pay Rs.70,000/- as

compensation to respondent No.2. In case of failure to deposit compensation,

sentence of simple imprisonment for two months was also provided. Appellate

court modified the sentence as fine of Rs.70,000/- and in default of payment, to

undergo simple imprisonment for one month. It was directed that fine if realized

will be paid to respondent No.2 as compensation. Having regard to the nature

of offence and the amount involved there is no reason to interfere with the

sentence as modified by the appellate court.

Crl.R.P.No.2120/2009

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5. Learned counsel submits that petitioner is in financially difficult

situation, unable to raise money immediately and requested three months’ to

deposit fine. Having regard to the circumstances stated by learned counsel and

the amount involved I am inclined to allow the request for time.

Resultantly, this revision petition fails. It is dismissed. Petitioner is

granted three months’ time from today to deposit fine in the trial court as

ordered by the appellate court and in default of payment, he shall undergo

imprisonment as ordered by the appellate court. Petitioner shall appear in the

trial court on 5.10.2009 to receive the default sentence.

Crl.M.A.No.6438 of 2009 will stand dismissed.

THOMAS P.JOSEPH,
Judge.

cks