IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2348 of 2009 ------------------------------------- CRA.489/2008 of ADDL.SESSIONS COURT (ADHOC I), KOTTAYAM ST.2113/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM ................................................. REVN. PETITIONER(S):APPELLANT/ACCUSED ------------------------------------------------------------------ SADASIVAN, THRIPURALAYAM HOUSE, NAGAMPADAM, KOTTAYAM DISTRICT. BY ADV. SRI.VIJU ABRAHAM SRI.K.ANIL JOSEPH SRI.JOY C. PAUL SRI.DOMINIC JOHNSON RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------- 1. SANTHOSH J., KANDANKULATHY, KANDANKULATHY HOUSE, KARAPPUZHA P.O., KOTTAYAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.ABRAHAM GEORGE JACOB FOR R1 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.R.P.NO.2348 OF 2009 ------------------------------ Dated this the 30th day of July, 2009 O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, (Adhoc)-I, Kottayam in Crl.A.No.489/2008. In fact, the said appeal had arisen out of the conviction and sentence passed by the JFCM-II (Mobile), Kottayam in S.T.No.2113/2007. It is the case of the complainant that the accused had borrowed a sum and towards the discharge of the liability had issued a cheque, which when presented for encashment, returned with the endorsement of account closed. The courts below considered the matter in detail and the transactions is evidenced to start with by virtue of an agreement Ext.P1, subsequently a promissory note - Ext.P2 and ultimately by the cheque - Ext.P3. Therefore, the courts held that the accused did owe amount to the respondent and just because of closure of account, it will not exonerate him from the liability. These are all findings on facts concurrently held by the two 2 CRL.R.P.NO.2348/2009 courts. There is no scope for interference on that factual findings. It is submitted that civil matters are pending before the court. There cannot be any unjust enrichment for a person when a person advances amount, necessarily he has to be repaid but the borrower cannot be asked to pay it twice; one under a criminal litigation and the other under a civil litigation. So, in order to make the ends of justice when compensation is ordered in this case and it is realised, there will be a direction to the plaintiff in the civil suit only to realise the amount less the amount already realised by way of compensation under Section 357(3) of the Cr.P.C. Therefore, the criminal revision is disposed of as follows: 1. The finding of guilt under Section 138 of the N.I. Act is confirmed. 2. The sentence is modified and the accused is directed to undergo imprisonment till the rising of the court and to pay a compensation of Rs.2,11,600/= to the complainant as compensation under Section 357(3) of the Cr.P.C and in default to undergo S.I for another period of two months. 3 CRL.R.P.NO.2348/2009 3. If the compensation amount is received by the complainant, then he has to deduct that amount from the decree amount which is available to him under the civil decree and only the balance can be collected in execution of the said decree. 4. The revision petitioner shall present himself before the court below to receive the sentence and to pay the compensation on 1.12.2009. M.N. KRISHNAN, JUDGE cl 4 CRL.R.P.NO.2348/2009