IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 CRL.REV.PET.NO. 2504 OF 2009() ------------------------------------------------- CRA.420/2007 OF SESSIONS COURT, ERNAKULAM CC.1113/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- K.M. BABY, AGED 69 YEARS, S/O. MATHAI, RESIDNG AT KURUPPANPARAMBI HOUSE, KOOTHATTUKULAM, KOOTHATTUKULAM. BY ADV. SRI.A.T.ANILKUMAR SRI.P.DALBI EMMANUEL RESPONDENT(S) - RESPONDENTS - STATE & COMPLAINANT: ----------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ORIENTAL TRUST, KOOTHATTUKULAM, REP. BY ITS MANAGING PARTNER,V.P. ZAZHARIA, VAZHANGATTU VEEDU, KOOTHATTUKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2504 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of August, 2009 O R D E R -------------- Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.1. 2. This revision is in challenge of judgment of learned Sessions Judge, Ernakulam in Crl. Appeal No.420 of 2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.76,125/- from it and for repayment of that amount issued Ext.P4, cheque dated 31.10.2002. Dishonour of that cheque for insufficiency of funds is proved by Exts.P5 and P6. Service of statutory notice on petitioner is proved by Exts.P7 to P9. It is contended by petitioner that due execution of the cheque is not proved. 3. Respondent No.2 is a licensed money lender. That, Respondent No.2 is issued with a licence is proved by the evidence of P.W.2, Inspecting Assistant Commissioner of Commercial Taxes and Exts.X1 and X2. Managing Partner of Respondent No.2 gave evidence as P.W.1 regarding the transaction and execution of the cheque. It was CRL. R.P. No.2504 of 2009 -: 2 :- suggested to P.W.1 on behalf of petitioner that the latter has not singed the cheque. P.W.1 claimed that cheque was signed in his presence. There is no reason to disbelieve him. Admittedly cheque was drawn on the account maintained by petitioner. Petitioner has not replied to the statutory notice. Courts below found in favour of due execution of the cheque. Petitioner failed to rebut the presumption under Sec.139 of the Act. Therefore conviction of petitioner is legal and proper. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. He was directed to pay compensation of Rs.76,125/- and in default of payment to undergo simple imprisonment for two months. Appellate court did not interfere with the substantive sentence, direction for payment of compensation or the default sentence. Counsel for petitioner contended that substantive sentence awarded may be modified and petitioner may be permitted to pay the compensation directly to respondent No.2 within six months' time. Having regard to the nature of offence and object of legislation I am inclined to think that simple imprisonment till rising of the court will be sufficient in the ends of justice. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded to CRL. R.P. No.2504 of 2009 -: 3 :- petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 30.12.2009 to deposit the compensation in the trial court as ordered by the learned magistrate. In case fo failure, petitioner has to undergo simple imprisonment for two months. (iii) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the compensation within the 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 petitioner shall be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv