IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2455 of 2009()
1. P.K.JOSE, S/O.KURIAKOSE
... Petitioner
Vs
1. SHAJI K ABRAHAM,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent : No Appearance
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.2455 of 2009
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Dated this the 3rd day of August, 2009
O R D E R
This revision is in challenge of judgment of learned
Additional Sessions Judge (Ad-hoc)-II, Ernakulam in
Crl.Appeal No.158 of 2009 confirming conviction but
modifying sentence of petitioner for offence punishable
under section 138 of the Negotiable Instruments Act (for
short, ‘the Act’). Notice to respondent No.1 is dispensed
with in view of the order, I propose to pass in this revision
which is not prejudicial to respondent No.1.
2. According to respondent No.1, petitioner
borrowed Rs.64,000/- (Rupees Sixty four thousand only)
from him undertaking to repay the same within three
months and on demanding repayment issued Ext.P1, cheque
dated 30.12.2005 for the said sum of Rs.64,000/-. That
cheque on presentation was dishonoured for insufficiency of
funds as proved by Ext.P2. Issue and service of statutory
Crl. R.P.No.2455 of 2009
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notice on petitioner are proved by Exts.P3 and P5.
Respondent No.1 gave evidence as PW1 and stated about
the transaction leading to execution of the cheque. He
admitted that after filing of the complaint, petitioner paid
Rs.30,000/- to him on 30.10.2006 evidenced by Ext.P6
which is the carbon copy of receipt issued to the petitioner.
According to the petitioner, he had borrowed only
Rs.30,000/- and the entire amount was paid. Courts below
did not accept that contention of petitioner.
3. So far as execution of the cheque is concerned,
there is evidence of respondent No.1. Ext.P6 also shows
that the total amount payable by petitioner was Rs.64,000/-
out of which Rs.30,000/- was paid to respondent No.1 on
30.10.2006. In the light of Ext.P6 also, contention of
petitioner that only Rs.30,000/- was borrowed cannot be
accepted. Moreover, petitioner has not replied to the
statutory notice served on him. In the circumstances there
is no reason to interfere with conviction of petitioner.
Crl. R.P.No.2455 of 2009
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4. Learned magistrate sentenced petitioner to
undergo simple imprisonment for two months. There was a
direction for payment of compensation of Rs.34,000/- to
respondent No.1 with a default sentence of imprisonment
for one month. Appellate court modified the substantive
sentence as simple imprisonment till rising of the court.
Compensation was converted as fine and default sentence
of imprisonment for one month was provided. Having
regard to the nature of offence and amount involved I find
no reason to interfere with the substantive sentence,
direction for payment of fine and the default sentence as
modified by the appellate court, at the instance of
petitioner. Learned counsel requested that petitioner may
be granted six months time to deposit the fine. According
to the learned counsel, petitioner is not able to raise the
amount immediately on account of financial difficulties.
Considering the circumstances stated by learned counsel I
am inclined to grant time to deposit the fine.
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Resultantly this revision fails. It is dismissed
Petitioner is granted time till 30.12.2009 to deposit the fine
in the trial court as ordered by the appellate court.
Petitioner shall appear in the trial court on 31.12.2009 to
receive the sentence. Execution of warrant if any against
the petitioner will stand in abeyance till that day.
THOMAS.P.JOSEPH,
JUDGE.
app/-