IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2706 of 2009()
1. SUBASH, S/O.PREMADASAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. K.T.RAJAPPAN, S/O.THANKAPPAN,
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No. 2706 of 2009
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Dated this 26th day of August 2009
ORDER
This revision is in challenge of judgment of learned Additional
Sessions Judge, Fast Track No-1, Alapuzha in Criminal Appeal No.240 of
2009 confirming conviction but modifying sentence of petitioner for
offence punishable under section 138 of the Negotiable Instruments
Act. According to respondent No.2, petitioner borrowed Rs.One Lakh
from him on 02-04-2007 and issued Ext.P1, cheque dated 02-04- 2007
for repayment of that amount. That cheque was dishonoured for
insufficiency of funds as proved by Ext.P2. Statutory notice was issued
to the petitioner but it was returned unclaimed inspite of giving
intimation. Issue and return of notice as aforesaid are proved by
Exts.P3 to P5. Respondent No.2 has given evidence as PW1 and stated
to his case. Petitioner claimed that he had borrowed Rs.10,000/- from
respondent No.2 and given a signed blank cheque which has been
misused.
2. It is contended by learned counsel that concurrent finding
entered by the courts below regarding due execution of the cheque is
not correct. It is not disputed that Ext.P1 is signed by petitioner and
drawn on his account. He does not dispute that he had financial
transaction with respondent No.2 and that it was in connection with
that, the cheque was given to respondent No.2. His contention is only
Crl.R.P.No.2706 of 2009 2
that the amount borrowed is only Rs.10000/- but, that contention is not
proved or probabilised. That the notice issued on behalf of respondent
No.2 was returned unclaimed inspite of intimation indicated that he
was aware the claim being made on behalf of respondent No.2.
Nothing was brought out to disbelieve the evidence of respondent
No.2. In these circumstances there is no reason to interfere with the
concurrent finding of the courts below regarding due execution of the
cheque and failure of petitioner to rebut the presumption. Conviction
is therefore legal and proper.
3. In modification of the sentence awarded by the court
below, learned Additional Sessions Judge sentenced the petitioner to
pay fine of Rs. One Lakh with default sentence of simple imprisonment
for one month. It was directed that the fine if realised will be paid to
respondent No.2 as compensation. Having regard to the nature of
offence I find no reason to interfere with the sentence as modified by
the appellate court at the instance of petitioner. Learned counsel for
petitioner requested eight months time to deposit fine. It is submitted
by learned counsel that due to financial difficulties petitioner is unable
to raise the amount immediately. Having regard to the facts and
circumstances of the case and the difficulties of petitioner expressed
by learned counsel as well as the amount involved I am inclined to
grant petitioner time till 28-01-2010 to deposit fine in the trial court.
Crl.R.P.No.2706 of 2009 3
Resultantly this revision petition fails. It is dismissed. Petitioner
is granted time till 28-01-2010 to deposit fine in the trial court. In case
of default, petitioner shall appear in the trial court on 30-01-2010 to
receive the sentence. Execution of warrant if any against the
petitioner will stand in abeyance till 30-01-2010.
THOMAS P JOSEPH, JUDGE
Sbna/