IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1769 of 2009()
1. JOHN, S/O. NARAYANAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
2. RAVINDRAN,
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :09/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1769 of 2009
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Dated this the 9th day of June, 2009.
ORDER
Public Prosecutor takes notice for respondent No.2. Notice to respondent
No.2 is dispensed with in view of the order I am proposing to make and which is
not prejudicial to him.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge-II, Thiruvananthapuram in Crl.Appeal No.522 of 2006
confirming conviction but modifying sentence awarded by the learned magistrate
for offence punishable under Section 138 of the Negotiable Instruments Act (for
short, “the Act).
3. According to respondent No.2, petitioner borrowed Rs.50,000/-
from him and on 27.11.2003 issued Ext.P1, cheque dated 30.3.2002 for the
discharge of that liability. That cheque was dishonoured for insufficiency of funds
as proved by Ext.P2. On getting dishonour intimation respondent No.2 issued
notice to the petitioner intimating the dishonour and demanding payment. Issue
and service of notice are proved by Exts.P3 to P5. Respondent No.2 gave
evidence as PW1 and spoke to his case. He claimed that petitioner borrowed
Rs.50,000/- from him and for the discharge of that liability issued the cheque.
Contention raised by the petitioner is that respondent No.2 was conducting a
chitty having sala of Rs.25,000/-, he subscribed to one kuri, received the amount
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and at that time respondent No.2 obtained signed blank cheque as security. He
happened to default payment of future instalments to the tune of Rs.10,000/-.
Thereon, respondent No.2 misused the cheque and preferred the complaint.
4. So far as dishonour of the cheque for insufficiency of funds and
issue and service of statutory notice are concerned, there is no contention raised
before me nor do I find reason to interfere with the concurrent findings entered
by the courts below in that regard.
5. Challenge in this revision is to the finding regarding execution of the
cheque. That, Ext.P1 contains the signature of petitioner and it was drawn on
the account maintained by the petitioner are not disputed. It is admitted that
petitioner had some transaction with respondent No.1 and in connection with
that, petitioner gave the cheque to respondent No.2. According to the petitioner
he had not borrowed Rs.50,000/- from respondent No.2 and instead a sum of
Rs.10,000/- was payable to respondent No.2 by way of defaulted instalments in
a kuri to which petitioner had subscribed. So far as that contention is concerned,
what is available is only the plea raised by the petitioner when questioned under
Section 313 of the Code of Criminal Procedure and suggestions to that effect to
respondent No.2 which the latter denied. Petitioner has not proved or even
probabilised his contention that he had given signed blank cheque in the
circumstances pleaded by him. On the other hand there is the evidence of
respondent No.2 coupled with the fact that petitioner did not reply to the notice
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served on him intimating the dishonour of the cheque for Rs.50,000/- and
demanding payment of that amount. There is also no reason to disbelieve the
evidence of respondent No.2. In these circumstances, courts below are justified
in holding in favour of due execution of the cheque and that petitioner failed to
rebut the presumption under Section 139 of the Act. No interference in
revision is required.
6. Learned magistrate sentenced the petitioner to undergo simple
imprisonment for one and a half months and directed him to pay Rs.50,000/- as
compensation. There is a default sentence of one and a half months. Appellate
court modified the substantive sentence as simple imprisonment till rising of the
court and compensation was converted as fine with default sentence of one
month. I do not find reason to interfere with the sentence as modified by the
appellate court.
7. Counsel for petitioner requested four (4) months’ time to deposit
fine in the trial court. Learned counsel submits that petitioner is unable to raise
the amount in lump. Considering the amount involved and also the
circumstances stated by learned counsel, I am inclined to grant three months’
time to the petitioner to deposit fine in the trial court.
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. Petitioner shall appear in the trial court on
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14.9..2009 to receive the sentence.
Crl.M.A.No.5413 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks