IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2471 of 2009() ------------------------------ CRA.152/2008 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.146/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.V.VIJAYAN, S/O.VASU, NIKHIL BHAVAN, ERUMAKUZHY, NOORANAD. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. SHANAVASKHAN, CHAKKTTAYIL HOUSE, KADAKKAD, PANDALAM. 2. STATE OF KERALA, REP.BY GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHIR C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2471 of 2009 -------------------------------------- Dated this the 4th 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, Pathanamthitta in Crl.Appeal No.152 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner borrowed Rs.1,50,000/- from him undertaking to repay the same when required and on his demanding repayment petitioner issued Ext.P1, cheque dated 1.12.2003. That cheque was dishonoured for insufficiency of funds as seen from Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P5 to P7. Respondent No.1 gave evidence as PW1 and spoke to the transaction leading to the execution of the cheque. According to the petitioner, he had property transaction with one Somarajan, a Constable of Pandalam Police station. In connection with such a transaction, Somarajan obtained commission. There was an offer to pay 50% of that commission to the petitioner but Somarajan refused to give commission. The said Somarajan forged the signature of petitioner in a blank cheque petitioner Crl.R.P.No.2471/2009 2 had given to him in connection with a vehicle transaction. Petitioner examined DWs 1 to 5 and proved Exts.D1 to D3. Ext.D1 is the copy of the reply dated 31.12.2003. Ext.D2 is produced to show that the reply was under certificate of posting. Ext.D3 is a postal receipt. Courts below were not impressed by the evidence of DWs 1 to 5 and found in favour of due execution of the cheque. That finding is under challenge. Learned counsel contends that the concurrent finding entered by the courts below is not correct. 3. Though learned magistrate has not discussed at length evidence of DWs 1 to 5, it is seen that appellate court has referred to that evidence also while confirming the finding of the trial court regarding the execution of the cheque. DW1 is a staff of Janatha Theatre claimed to have seen petitioner giving a cheque to the said Somarajan sometime in December, 2003. DW 2 stated that petitioner had transactions with the said Somarajan but he does not know the details of such transaction. Somarajan was examined as DW3. He denied that he had any such transaction with petitioner or, taken blank cheque. DWs 4 and 5 stated about petitioner giving blank cheque to the said Somarajan but they were not able to give details of the cheque and the date on which the incident occurred. Thus, the evidence of DW3, Somarajan, is not in any way helpful to the petitioner. Evidence of DWs 1, 2, 4 and 5 was also not of any help to the petitioner so far as the cheque in question is concerned. It is not disputed that the cheque is drawn on the account maintained by petitioner. Though petitioner has a contention that Somarajan (DW3) had forged his signature, Crl.R.P.No.2471/2009 3 there is no acceptable evidence in that line. It is pertinent to note that dishonour of the cheque was not for any dissimilarity in the signature of petitioner on the cheque with the signature in the specimen signature card. It is in these circumstances that the appellate court confirmed the finding of the learned magistrate that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. On the factual situation emerging from the case I do not find reason to interfere with that finding. 4. Learned Sessions Judge has modified the substantive sentence as simple imprisonment for six months while confirming the direction for payment of compensation and the default sentence of imprisonment for one month. It is contended by the learned counsel that the substantive sentence as modified by the appellate court is excessive. Having regard to the nature of offence and circumstances stated by learned counsel 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 six months in case compensation is not paid. 5. 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 Crl.R.P.No.2471/2009 4 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 six months. Resultantly, this revision petition 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 as ordered by that court and confirmed by the appellate court failing which petitioner has to undergo simple imprisonment for six 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 sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks