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.
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Crl.R.P.No.2120 of 2009
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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
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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.
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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.
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