IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2704 of 2009()
1. M.MOIDEEN, AGED 38 YEARS,
... Petitioner
Vs
1. JAYAPRASAD ALWA, AGED 45 YEARS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.MURUGAN P.V.
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.
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Crl.R.P.No.2704 of 2009
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Dated this the 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 the revision which is not prejudicial to him. Public
Prosecutor takes notice for respondent No.2.
2. This revision is in challenge of judgment of learned Additional
Sessions Judge (Adhoc-II), Kasaragod in Crl.Appeal No.297 of 2007 confirming
conviction but modifying sentence of petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act (for short, “the Act”). According
to respondent No.1, petitioner borrowed Rs.85,000/- from him and for
repayment of that amount issued Ext.P1, cheque dated 10.2.2005. That cheque
was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent
No.1 issued notice to the petitioner intimating dishonour and demanding
payment. Notice was returned unclaimed. Issue and service of statutory notice
as aforesaid are proved by Exts.P3 to P5. Respondent No.1 gave evidence as
PW1 and testified to his case. According to the petitioner, he had no transaction
with respondent No.1. Instead when one Suresh borrowed money from
respondent No.1 his signed blank cheque was given as security. Suresh repaid
the amount but respondent No.1 did not return the cheque. That cheque has
been misused.
Crl.R.P.No.2704/2009
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3. It is contended in this revision that due execution of the cheque is
not proved. It is not disputed that Ext.P1, cheque contained signature of
petitioner and is drawn on the account maintained by the petitioner. It is also
not disputed that the cheque is given to respondent No.1 though according to
him as security for the loan given to the said Suresh. That suggestion has
been denied by respondent No.1. There is no evidence or circumstance to think
that the cheque came to the possession of respondent No.1 in the
circumstances stated by the petitioner. That petitioner refused to claim the
notice inspite of intimation shows that he was aware of the claim being made on
behalf of respondent No.1. In the circumstances there is no reason to interfere
with the finding of the courts below as to the due execution of the cheque.
Petitioner has not rebutted the presumption under Section 139 of the Act.
4. Learned magistrate sentenced petitioner to undergo simple
imprisonment for six months. There was also a direction for payment of
Rs.85,000/- by way of compensation to respondent No.1 and in default of
payment to undergo simple imprisonment for three months. Appellate court
modified the substantive sentence as simple imprisonment till rising of the court
and fine of Rs.80,000/-. Default sentence of simple imprisonment for three
months was also provided Appellate court directed that fine if realized will be
paid to respondent No.1 as compensation. Having regard to the nature of
offence and the amount involved I find no reason to interfere with the sentence
as modified by the appellate court or the default sentence at the instance of
petitioner.
Crl.R.P.No.2704/2009
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5. Learned counsel requested that petitioner may be granted six
months’ time to deposit fine in the trial court. Learned counsel states that
petitioner is not able to raise the amount immediately due to financial
difficulties. Having regard to the facts and circumstances and the amount
involved, petitioner is granted time till 20.1.2010 to deposit fine in the trial court
as ordered by the appellate court.
Resultantly this revision petition fails. It is dismissed. Petitioner is
granted time till 20.1.2010 to deposit fine in the trial court as ordered by the
appellate court. Petitioner shall appear in the trial court on 22.1.2010 to receive
the sentence. Until then execution of warrant if any against the petitioner will
stand in abeyance.
THOMAS P.JOSEPH,
Judge.
cks