IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 Crl.Rev.Pet.No. 1843 of 2009() ------------------------------ CRA.403/2007 of ADDL.SESSIONS COURT (ADHOC-II), KASARAGOD CC.270/2006 of JUDICIAL FIRST CLASS MAGISTRATE-II(ADDL.MUNSIFF), KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.MADHUSUDAN, S/O.KUNHI RAMAN, PROP.VIGNESHWARA ENTERPRISES, RESIDING AT RINE NILAYA, BHAJANA MANDIR ROAD, POST BEJAI, MANGALORE TALUK, D.K.DISTRICT, KARNATAKA. BY ADV. SRI.DINESH RAO.A. RESPONDENT(S): RESPONDENT & STATE/COMPLAINANT & STATE ----------------------------------------------------- 1. MOHAMMAD SHAFI THAYAL, S/O.THAYAL ABDULLA, FORT ROAD, KASARAGOD, P.O.KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.ALAN PAPALI FOR R1 PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1843 of 2009 -------------------------------------- Dated this the 20th day of August, 2009. ORDER Heard both sides. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kasaragod in Crl.Appeal No.403 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rupees five lakhs from him and for discharge of that liability issued Ext.P1, cheque dated 15.10.2005. 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.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to the transaction leading to the execution of cheque. He stated that on 10.9.2005 petitioner received the sum of Rupees five lakhs from him and issued cheque dated 15.10.2005. According to the petitioner, he had borrowed Rs.50,000/- from respondent No.1. about two years back and given two signed blank cheques as security. He repaid Rs.37,500/- but one of the signed blank cheques has been misused. Courts below did not accept the contention of petitioner and found him guilty. It is contended by learned counsel that finding of the courts below is not correct. Learned counsel for respondent No.1 supported the finding of the courts Crl.R.P.No.1843/2009 2 below. 3. First contention advanced by learned counsel for petitioner is that evidence of respondent No.1 has made a fatal departure from what is averred in the complaint as to the execution of the cheque and discharge of liability. Learned counsel contends that what is stated in the complaint and chief affidavit is that cheque was issued for a liability which existed even prior to the date of execution of the cheque but in cross examination he stated that the amount was lent on 10.9.2005 and on the same day cheque bearing date 15.10.2005 was issued. I have gone through the copy of complaint, chief affidavit and cross examination of respondent No.1. I am not able to find any statement either in the complaint or chief affidavit that the transaction was on a day prior to 10.9.2005 or the day according to respondent No.1, cheque dated 15.10.2005 was issued. On the other hand what is stated in the complaint in paragraph No.1 is that petitioner has issued cheque dated 15.10.2005 in favour of respondent No.1 for repayment of the amount legally due to him. Similar statement is made in the chief affidavit also. That does not in any way contradict the version of respondent No.1 in cross examination that the transaction was on 10.9.2005 and on the same day cheque dated 15.10.2005 was issued. Cheque was issued by petitioner on 10.9.2005 who going by the averments in the complaint and evidence of respondent No.1 was indebted to respondent No.1 to the tune of Rupees five lakhs. 4. It is contended that respondent No.1 was not having financial Crl.R.P.No.1843/2009 3 stability to advance a loan of Rupees five lakhs. Learned counsel referred to the evidence of respondent No.1 in cross examination that he had no particular job or occupation and that he is not a tax payer. He stated that the sum of Rupees five lakhs he had with him was advanced to the petitioner. He stated in the evidence that he is an informer of the customs and hence he is not able to give details of his income. He further stated that he had a shopping complex and house and that the amount advanced to the petitioner is including the sale consideration of the said shopping complex and house as well. Even as per the contention raised by petitioner it appears to me that respondent No.1 had sufficient means, for, petitioner claimed that he borrowed Rs.50,000/- from respondent No.1 two years back. I am unable to understand from that contention that admission of petitioner was only to the extent that respondent No.1 was financially sound enough to lend a sum upto Rs.50,000/-. On going through the evidence I am unable to accept the contention of learned counsel for petitioner that respondent No.1 was not financially capable of advancing loan of Rupees five lakhs. 5. As regards due execution of the cheque there is evidence of respondent No.1. Petitioner does not dispute that he signed Ext.P1, it was drawn on the account maintained by him and that he had handed over the same to respondent No.1 in connection with a financial transaction though according to him, in signed blank form. It is not disputed and Ext.P6 shows that statutory notice was served on petitioner. He has not replied to that notice. Not only that Crl.R.P.No.1843/2009 4 he did not reply to the statutory notice wherein intimation about dishonour of cheque for Rupees five lakhs and demand for payment of that amount is made, he paid Rs.37,500/- to respondent No.1 after service of that notice. If actually no amount as claimed in the notice was due to respondent No.1, petitioner would have got an endorsement on payment of Rs.37,500/- that the entire amount due is paid. On the other hand, when the statutory notice demanding Rupees five lakhs was served on petitioner, he paid Rs.37,500/- to respondent No.1 without a demur. Therefore, the contention that no such amount as stated in Ext.P1 and the statutory notice was due to respondent No.1 cannot be accepted. Courts below found that there is no reason to disbelieve the evidence of respondent No.1. Petitioner has not produced or brought out any circumstance to probabilise the contention he raised. I do not find reason to interfere with conviction of petitioner. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months and directed payment of compensation of Rupees five lakhs to respondent No.1. A default sentence of imprisonment for three months was also imposed. Appellate court modified the sentence as simple imprisonment till rising of the court, payment of fine of Rupees five lakhs and a default sentence of imprisonment for three months was provided. 7. Learned counsel for petitioner submitted that the sum of Rs.37,500/- paid to respondent No.1 may be deducted from the amount payable to respondent No.1. It is requested that fine may be converted as compensation Crl.R.P.No.1843/2009 5 payable to respondent No.1 directly. Further request is that since petitioner is unable to raise the entire amount immediately, he may be granted twelve (12) months’ time to deposit/pay compensation. Learned counsel for respondent No.1 has no objection in adjusting the sum of Rs.37,500/- already paid to respondent No.1 in the amount payable to respondent No.1. He has also no objection in converting fine as compensation payable to respondent No.1. But it is requested that twelve (12) months’ time may not be granted since the transaction was of the year 2005 and respondent No.1 is loosing interest on the amount due to him. Considering the circumstances stated by learned counsel for petitioner, I am inclined to grant time to the petitioner till 29.1.2010 to deposit compensation. In case of failure petitioner has to undergo simple imprisonment for three months . Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence of simple imprisonment till rising of the court as modified by learned Additional Sessions Judge, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.4,62,500/- (Rupees four lakhs sixtytwo thousand and five hundred only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 29.1.2010 failing which petitioner has to undergo simple imprisonment for three months. ii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to Crl.R.P.No.1843/2009 6 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 above said period. Petitioner shall appear in the trial court on 30.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks