IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 CRL.REV.PET.NO. 2796 OF 2009() ------------------------------ CRA.558/2007 OF ADDL. SESSIONS JUDGE (ADHOC-III) N.PARAVUR ST.5289/2003 OF JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------- BAIJU, AGED 38 YRS., S/O.THANKAPPAN, MANAPARAMPIL HOUSE, NANTHIATTUKKUNNAM, PARAVUR VILLAGE. BY ADV. SRI.K.ANAND SRI.PRADEESH CHACKO RESPONDENT(S): COMPLAINANT & STATE -------------------------------------------------------- 1. MATHEW JOSEPH, AGED 40 YRS., S/O.MAMPILLY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2796 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of August, 2009 O R D E R -------------- Notice to Respondent No.1 is dispensed with in view of the order I am proposing to pass 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 (Adhoc-III), North Parur in Crl. Appeal No.558 of 2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 3. According to respondent No.1, petitioner borrowed Rs.60,000/- from him and on his demanding repayment issued Ext.P1, cheque dated 25.6.2003. That cheque was dishonoured as account was closed which is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 and P5. Respondent No.1 gave evidence as P.W.1 and claimed that petitioner borrowed the amount and issued the cheque. According to the petitioner, he had no transaction with respondent No.1. He denied signature in Ext.P1, cheque. It is contended that due execution of the cheque is not proved. Respondent No.1 in his evidence as P.W1 stated that at the CRL. R.P. No.2796 of 2009 -: 2 :- time of borrowal petitioner had also issued a promissory note undertaking to pay the amount but that demand promissory note is not produced. According to learned counsel for petitioner, non-production of that demand promissory note is fatal. But law does not require proof of original cause of action in all cases. What is required to be pleaded and proved in a prosecution under Section 138 of the Act is the due execution of the cheque. Though petitioner disputed signature in Ext.P1 and examined D.W.1, Manager of drawee bank and proved Ext.D1, fact remained that dishonour of the cheque was not for the reason of dissimilarity in the signature but as account was closed. Petitioner has no satisfactory explanation as to how the cheque leaf reached the hands of respondent No.1. When the cheque is drawn on the account maintained by petitioner he ought to have taken steps to show that the signature in Ext.P1 is not of his. Petitioner did not reply to the statutory notice. There is no evidence or circumstance to show that cheque leaf happened to be in the custody of respondent No.1 in any manner otherwise than as told by him. Court below found no reason to disbelieve the evidence of respondent No.1 and found in favour of due execution of the cheque. I do not find reason to interfere with that finding. CRL. R.P. No.2796 of 2009 -: 3 :- 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.61,000/- with a default sentence of simple imprisonment for forty five days. 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. Learned counsel requested four months’ time to deposit compensation in the trail court. He submitted that petitioner is out of station and it would take time for him to pay compensation and that petitioner may be permitted to pay the compensation directly to respondent No.1. Considering the circumstances stated by counsel I am inclined to grant time till 21.12.2009. Having regard to the nature of offence substantive sentence can be modified as simple imprisonment till rising of the court. There is no reason to interfere with the direction for payment of compensation or the default sentence. 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. CRL. R.P. No.2796 of 2009 -: 4 :- (ii) Petitioner is granted time till 21.12.2009 to deposit compensation in the trial court as ordered by the learned magistrate. (iii) It is made clear that it shall be sufficient compliance with 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 compensation within the said period. Petitioner shall appear in the trial court on 23.12.2009 to receive the sentence. It is made clear that it will be open to the petitioner to deposit/pay compensation and appear in the trial court to receive the sentence on any day prior to 21.12.2009. Until appearance as above stated, execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv