IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 2474 of 2009() ------------------------------ CRA.29/2008 of ADDL.SESSIONS COURT (ADHOC)-I, KOTTAYAM ST.153/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- N.SIVAJI, THEKKEDATHU HOUSE, PERUNNA P.O., CHANGANASSERY, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. RAJEEV GOPALAKRISHNAN, VELOOR PARAMBIL, PERUNNA, CHANGANASSERY, KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2474 of 2009 -------------------------------------- Dated this the 3rd day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this 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)-I, Kottayam in Crl.Appeal No.29 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner issued Ext.P1, cheque dated 10.10.2005 for Rs.40,000/- for discharge of a liability towards him. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, respondent No.1 was conducting a kuri six years back and he joined in that kuri. He has been making daily payments to respondent No.1. He took Rs.4,500/- from respondent No.1 and gave signed blank cheque which has been misused. Courts below did not accept the case of petitioner and found him guilty. That finding is under challenge in this revision. 3. Though when questioned under Section 313 of the Code of Crl.R.P.No.2474/2009 2 Criminal Procedure, case of petitioner was that he received Rs.4,500/- and gave signed blank cheque, what was suggested to respondent No.1 was that petitioner borrowed Rs.10,000/- from him and gave signed blank cheque as security. It is true that being an accused in a criminal case petitioner can take up inconsistent pleas. But, while evaluating the evidence, that petitioner has no consistent case is also required to be considered. Petitioner has also not adduced any evidence or brought out circumstances to disbelieve the case of respondent No.1. It is in the above circumstances that courts below found in favour of due execution of the cheque which I find no reason to interfere. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There was a direction for payment of compensation of Rs.40,000/- and in default of payment to undergo simple imprisonment for one month. Appellate court did not interfere with the sentence. It is contended that sentence awarded is excessive. 5. Having regard to the nature of offence and circumstances of the case I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation. But, since the substantive sentence is modified, petitioner has to undergo simple imprisonment for three months in case Crl.R.P.No.2474/2009 3 compensation is not paid. 6. Learned counsel requested six months' time to deposit the compensation in the trial court since according to learned counsel, petitioner is undergoing treatment and is unable to raise the amount immediately. In the circumstances stated by the learned counsel I am inclined to grant time to the petitioner till 30.12.2009 to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court failing which petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the above said time. Petitioner shall appear in the trial court on 31.12.2009 to receive the Crl.R.P.No.2474/2009 4 sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks