IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 1998 of 2009 ------------------------------ CRA.399/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM CC.376/2005 of JUDICIAL FIRST CLASS MAGISTRATE-V, NEYYATTINKARA ------------------------------------------ REVN. PETITIONER/APPELLANT/ACCUSED: ================================ SURENDRAN L S/o. LEKSHMANAN, MOHANA SOUDHAM THALAYAL DESOM, ATHIYANOOR VILLAGE THIRUVANANTHAPURAM BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.SURESH WILFRED RESPONDENT/RESPONDENT/COMPLAINANT&STATE: ======================================== STATE OF KERALA, represented by the Public Prosecutor, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR: SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1998 of 2009 --------------------------------------- Dated this 24th day of June 2009 ORDER Petitioner faced trial in the court of learned Judicial First Class Magistrate-V, Neyyattinkara in C.C.No.376/05 for offences punishable under Sec.138 of Negotiable Instruments Act. Case arose on a private complaint preferred by respondent No.1 alleging that petitioner borrowed Rs.3,00,000/- from him and issued three cheques (Ext.P1 to P3 are the certified copies of those cheques) dated 01-03-04 for Rs.2,00,000/-, 05-03-04 for Rs.75,000/- and 10-03-04 for Rs.25,000/-. According to respondent No.1, he presented the cheques for encashment but the same were dishonoured for insufficiency of funds and he got the dishonour intimation on 11-08-04. On 13-08-04 he sent statutory notice to the petitioner intimating dishonour and demanding payment of the amount. That notice was served on petitioner on 14-08- 04. Dishonour of the cheques due to reason stated above and issue and service of statutory notice are not in challenge and are proved by Ext.P4 to P8. Challenge is to the finding of the courts below as to the execution of the cheques. Crl.R.P.No.1998/09 2 2. According to the petitioner, he borrowed Rs.10,000/- each from respondent No.1 in January 2004, February 2004 and March 2004 agreeing to pay interest at the rate of Rs.300 per month on each borrowal. On those occasions he gave three blank cheques to respondent No.1 as security. He paid the interest due on the principal amount. Petitioner gave evidence as DW1 and proved as Ext.D1, said to be a book issued by respondent No.1 and which contained details of payments as claimed by the petitioner. Courts below did not accept the explanation of the petitioner. 3. So far as transaction and execution of the cheques are concerned respondent No.1 has given evidence as PW1. Petitioner does not dispute that he had borrowed money from respondent No.1 but the dispute is regarding the quantum. According to him he borrowed Rs.10,000/- each on three occasions. Respondent No.1 would say that the amount borrowed is Rs.3,00,000/- and cheques (Ext.P1 to P3) were issued. So far as Ext.D1 is concerned learned magistrate observed after perusal of that book that it does not contain any proper details from which an inference is possible that the amount Crl.R.P.No.1998/09 3 borrowed was only Rs.30,000/- as claimed by petitioner and as spoken by him as DW1. Courts below observed that there is no evidence to show that Ext.D1 is issued by respondent No.1. Petitioner did not reply to the notice served on him in spite of the fact that respondent No.1 claimed a fairly biig sum of 3,00,000/- as against the claim of the petitioner that he had borrowed only Rs.30,000/-. It is in evidence that respondent No.1 on the strength of the original cheques filed a civil suit and got a decree. Courts below have considered the evidence and found that petitioner issued the cheques in favour of respondent No.1 for repayment of a sum of Rs.3,00,000/- borrowed by him. I do not find any reason to interfere that finding. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year. Appellate court modified the sentence to simple imprisonment till rising of the court but directed the petitioner to pay Rs.3,00,000/- as compensation to respondent No.1 and in default of payment to undergo simple imprisonment for three months. Appellate court is entitled to award compensation in view of Sec.357(4) of the Code of Criminal Procedure (for short, “the Code”). Hence there is no illegality as in the appellate court directing payment Crl.R.P.No.1998/09 4 of compensation or imposing default sentence. 5. Learned counsel requested three months' time to deposit compensation. Learned counsel submitted that in case compensation is paid or deposited as ordered by the appellate court, petitioner is entitled to get adjustment under Sec.357(5) of the Code. In the circumstances stated by learned counsel, I am inclined to grant three months' time to the petitioner to deposit compensation to the trial court. Resultantly this revision fails. It is dismissed. Petitioner is granted three months' time from today to deposit compensation as ordered by the appellate court, in the trial court failing which he shall undergo imprisonment as ordered by the appellate court. It is made clear that it will be sufficient compliance of the direction regarding deposit of compensation if petitioner deposited the said amount in the Sub Court, Neyyattingara in O.S.No.118 of 2004 and produced evidence for the same in the trial court within the aforesaid period of three months. Petitioner shall appear in the trial court on 26-09-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/