IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2473 of 2009()
1. M.A.BABU,AD A3-3435,MG UNIVERSITY,
... Petitioner
Vs
1. JOSEPH P.GEORGE,PULLATHIL HOUSE,
... Respondent
2. STATE OF KERALA REP.BY THE PUBLIC
For Petitioner :SRI.M.J.THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2473 of 2009
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Dated this the 3rd day of August, 2009.
ORDER
Notice to respondent No.1 is dispensed with in view of the order I
am proposing to pass in the revision which is not prejudicial to him. Public
Prosecutor takes notice for respondent No.2.
2. Petitioner is challenging the concurrent finding entered by the
courts below as to the due execution of a cheque for discharge of a legally
enforceable debt/liability. Petitioner who faced trial in the court of learned
Judicial First Class Magistrate-III, Kottayam in C.C.No.1352 of 2004 was
convicted and sentenced to undergo simple imprisonment for two months.
There was a direction for payment of compensation of Rs.40,000/- to
respondent No.1 with a default sentence of imprisonment for one month. In
Crl.Appeal No.629 of 2007 learned Sessions Judge confirmed conviction but
modified sentence as fine of Rs.40,000/- with a default sentence of
imprisonment for one month. According to respondent No.1, petitioner owed
Rs.40,000/- to him and for discharge of that liability issued Ext.P1, cheque dated
29.6.2004. That cheque was dishonoured for insufficiency of funds as proved by
Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4
and P5. Respondent No.1 gave evidence as PW1 and spoke to his case.
Petitioner denied that he had any transaction with respondent No.1. Instead, he
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had borrowed Rs.5,000/- from one Sunny Sebastian and given a signed blank
cheque as security. That cheque was misused. It is contended that finding of
the courts below regarding due execution of the cheque is not correct.
3. It is admitted that Ext.P1 contained the signature of petitioner and
that cheque is drawn on the account maintained by him. It is true that he has a
contention as to how else the cheque happened to be in the custody of
respondent. Apart from the mere suggestion to respondent No.1 which he
denied, there is no evidence on record to hold so. Petitioner did not reply to the
statutory notice. Nothing is brought out to disbelieve the evidence of PW1.
Petitioner has not rebutted the presumption under Section 139 of the Act. It is
in these circumstances that courts below found in favour of due execution of the
cheque. As such conviction does not require interference.
4. Considering the nature of offence and the amount involved I do not
find reason to interfere with the sentence as modified by the appellate court or
the default sentence provided. Learned counsel submitted that petitioner has
been taken to custody in connection with another case and that he is not being
released in view of the warrant pending in this case. Learned counsel requested
that petitioner may be granted six months’ time to deposit the fine since
petitioner is in a financially difficult situation and is unable to raise the amount
immediately. Considering the circumstances stated by learned counsel I am
inclined to grant time to the petitioner till 30.12.2009 to deposit fine.
Resultantly, this revision petition fails. It is dismissed. Petitioner is
granted time till 30.12.2009 from this day to deposit fine in the trial court as
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ordered by the appellate court. In case petitioner failed to comply, he shall
appear in the trial court on 31.12.2009 to receive the default sentence as
ordered by the appellate court. Warrant if any issued against the petitioner will
stand recalled and will remain in abeyance till 31.12.2009.
THOMAS P.JOSEPH,
Judge.
cks