IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 1266 OF 2003(A) --------------------------------------------------- CRA.321/2000 OF SESSIONS COURT, ALAPPUZHA ST.47/1998 OF CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- SIVADAS, S/O.RAGHAVAN, THAREZHATHU VEEDU, MANNANCHERY, ALAPPUZHA. BY ADV. SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE SRI.ELVIN PETER P.J. RESPONDENT(S) - STATE: ------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ALEYAMMA CHERIYAN, CARMEL VILLAGE, WARD.NO.14, MARARIKULAM SOUTH PANCHAYATH, ALAPPUZHA. ADV. SRI.GRASHIOUS KURIAKOSE FOR R2 SRI.B.PRAMOD FOR R2 BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1266 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- Heard counsel on both sides. 2. This revision is in challenge of the judgment of learned Sessions Judge, Alappuzha in Crl. Appeal No.321 of 2000 confirming conviction and sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 3. According to respondent No.2, petitioner borrowed Rs.65,000/- from her husband on 7.4.1996 and executed a demand promissory note (Ext.P1). Her husband died on 5.2.1997. Thereafter when she demanded payment of the amount petitioner issued Ext.P2, cheque dated 20.1.1998 for the said sum of Rs.65,000/-. That cheque was dishonoured for insufficiency of funds as proved by Exts.P3 and P4. Statutory notice was given to the petitioner intimating dishonor and demanding payment of the amount. Issue and service of notice are proved by Exts.P5 to P7. Respondent No.2 gave evidence as P.W.1 and testified to her case. Contention raised by the petitioner is that he borrowed only Rs.10,000/- from the husband of respondent No.2 and at that time gave a signed blank cheque leaf and blank paper. He discharged the liability but the documents were not returned to him. CRL. R.P. No.1266 of 2003 -: 2 :- He did not adduce any evidence in support of that contention. Courts below considered the evidence of P.W.1 and Exts.P1 to P7 and found that petitioner executed the cheque for the discharge of the legally enforceable debt/liability. 4. Counsel for petitioner contended that the finding is erroneous. But on going through the records and facts admitted I find no reason to interfere with the said finding. That Ext.P2 contains the signature of the petitioner is admitted. It is also admitted that the cheque is drawn on the account maintained by the petitioner. Nothing is brought out to disbelieve the evidence of respondent No.2. It is also pertinent to note that petitioner did not reply to the statutory notice served on him. Therefore there is no reason to interfere with the conviction of the petitioner. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for five months. There was no direction for payment of compensation. Appellate court confirmed the conviction. Counsel for petitioner requested that the sentence may be modified as simple imprisonment till rising of the court. He also stated that pursuant to the order of this Court while suspending sentence a sum of Rs.65,000/- has been deposited by the petitioner in the trial court on CRL. R.P. No.1266 of 2003 -: 3 :- 25.8.2003. Counsel for respondent No.2 submitted that in case this Court is inclined to modify the sentence, direction may be given to the petitioner to pay compensation. He also pointed out that Ext.P1 transaction was in the year 1996. 6. Considering the object of legislation it is only just and proper that respondent No.2 is compensated for the loss suffered to her by the act of the petitioner. Section 357(4) of the Code of Criminal Procedure enables the High Court also to order compensation while exercising its powers of revision. In the facts and circumstances of the case and considering the fact that the transaction is of the year 1996, I consider it proper to direct the petitioner to pay compensation of Rs.70,000/- to respondent No.2. At the same time, sentence awarded on the petitioner can to be modified as simple imprisonment till rising of the court. This revision is allowed in part in the following lines: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.70,000/- (Rupees Seventy thousand only) as compensation within one month from this day CRL. R.P. No.1266 of 2003 -: 4 :- failing which he shall undergo simple imprisonment for two months. (iii) The sum of Rs.65,000/- if any deposited by the petitioner in the trial court pursuant to the order of this Court shall be adjusted towards the compensation directed to be paid hereby. (iv) It will open to respondent No.2 to seek withdrawal of the said amount from the trial court. Petitioner shall appear in the trial court on 29.6.2009 to receive the sentence. Criminal Miscellaneous Petition No.5258 of 2003 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.1266 of 2003 =================== O R D E R 26TH MAY, 2009