IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2444 of 2009() ------------------------------ CRA.358/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.307/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED. ------------------------------------------------------ MANOJ UNNITHAN, AGED 36 YEARS, S/O. MADHAVAN UNNITHAN, THRIVENIYIL FROM INDIRA BHAVANAM, THULAMPARAMBU, NADUVATHUM MURI, HARIPAD VILLAGE. BY ADV. SRI.S.MOHANAN RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT. ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SATHIAMMA, SATHI BHAVANAM, THULAMPARAMBU, NADUVATHUM MURI, HARIPAD VILLAGE, KARTHIKAPPALLY TALUK. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2444 of 2009 -------------------------------------- Dated this the 30th day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Harippad in S.T.No.307 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.90,000/- from him on 25.3.2006 and for repayment of that amount issued Ext.P1, cheque dated 10.5.2006. Dishonour of that cheque for insufficiency of funds is proved by Exts. P2 and P3. Service of statutory notice on petitioner is proved by Exts.P5 to P7. Respondent No.2 gave evidence as PW1 and testified to the transaction leading to the execution of the cheque. Petitioner claimed that he had borrowed only Rs.70,000/- from respondent No.2 and had agreed to pay half of the amount within fortyfive days but respondent No.2 was not agreeable and misused the cheque. Courts below found in favour of due execution of the cheque. 3. So far as finding regarding execution of the cheque is concerned, petitioner did not cross examine respondent No.2 when the latter was in the box. Thus there is the unchallenged evidence of respondent No.2 regarding the Crl.R.P.No.2444/2009 2 transaction and execution of the cheque. Petitioner has not also replied to the statutory notice served on him. Finding entered by the courts below regarding due execution of cheque rest on a proper appreciation of evidence which required no interference. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month. There was a direction for payment of compensation of Rs.90,000/-. A default sentence of imprisonment for three months was provided. Appellate court did not interfere with the sentence, direction for payment of compensation or the default sentence. It is contended that sentence imposed is excessive. It is requested that petitioner may be permitted to pay compensation directly to respondent No.1. The further request is that since petitioner, on account of financial difficulties is unable to raise the amount immediately, he may be granted six months’ time to deposit compensation 5. Having regard to the nature of offence, I am inclined to think 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 and default sentence at the instance of petitioner. Considering the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 30.12.2009 to deposit compensation. . 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. Crl.R.P.No.2444/2009 3 ii. Petitioner is granted time till 30.12.2009 to deposit compensation failing which petitioner has to undergo simple imprisonment for three months as ordered by the trial court. iii. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. 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