Kerala High Court
Subash vs State Of Kerala on 26 August, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
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/