IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.REV.PET.NO. 2626 OF 2009() ------------------------------ CRA.166/2006 OF ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.15/2005 OF 2005, JUDICIAL FIRST CLASS MAGISTRATE KASARGOD .................... REVN. PETITIONER(S): APPELLANT ACCUSED --------------------------------------------------------------------- ANSIA, AGED 31 YEARS, W/O.ABDUL SAMAD, R/AT LATHEEF MANZIL, PROPRIETOR, THALACHIRA (P.O.), KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. ABDUL RAHIMAN.M., AGED 46 YEARS, S/O.MAMMUNHI, R/AT AFROOS MANZIL, CHOORI, R.D.NAGAR P.O., KUDLU VILLAGE, KASARAGOD TALUK & DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2626 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), Kasargod in Crl. Appeal No.166 of 2006 arising from C.C. No.15 of 2005 of the court of learned Judicial First Class Magistrate-II, Kasargod. Petitioner is convicted and sentenced for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner issued Ext.P1, cheque dated 15.11.2003 for Rs.1,30,000/- for discharge of a loan. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment but according to him it was returned unclaimed in spite of intimation. Exhibits P4 and P5 are produced to prove that. Respondent No.1 gave evidence as P.W.1 and stated to his case. Petitioner claimed that respondent No.1 is not known to her. Her husband had financial transaction with the brother of respondent No.1 while they were in Gulf. Husband of petitioner returned from Gulf and later on the instruction of the brother of respondent No.1, latter and others came to her house and under threat obtained the cheque in question. CRL. R.P. No.2626 of 2009 -: 2 :- Petitioner did not adduce evidence in support of that contention. Courts below were not impressed by the case pleaded by petitioner and found her guilty. 2. It is not disputed that Ext.P1 is the cheque signed and drawn on the account maintained by petitioner. Her contention was that cheque was obtained under threat by respondent No.1 and others. That suggestion was denied by respondent No.1. There is no evidence to show that there was any such threat from respondent No.1 or anybody else. Courts below accepted the evidence of respondent No.1 regarding due execution of the cheque. 3. Exhibit P5 shows that intimation was given to petitioner about the registered notice on 9.2.2004 but it was not claimed by her and the same was returned to the sender. That indicated that petitioner was aware of the nature of the claim being made on behalf of respondent No.1. It has also come out in evidence that during the course of trial of the case petitioner paid Rs.15,000/- in partial discharge of the liability. In these circumstances there is no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. Taking into account the payment of CRL. R.P. No.2626 of 2009 -: 3 :- Rs.15,000/- petitioner was directed to pay Rs.1,15,000/- as compensation. In default of payment sentence of simple imprisonment for three months also was ordered. Appellate court did not interfere with the substantive sentence, direction for payment of compensation or the default sentence. Having regard to the amount involved and relevant circumstances I find no reason to interfere with the direction for payment of compensation or the default sentence. However, considering the nature of offence substantive sentence can be modified as simple imprisonment till rising of the court. 5. Learned counsel requested six months’ time to deposit compensation in the trial court. Counsel submitted that petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved, I am inclined to grant time till 13.1.2010 to deposit compensation. 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.2626 of 2009 -: 4 :- (ii) Petitioner is granted time till 13.1.2010 to deposit compensation in the trial court as ordered by that court. (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 her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period. Petitioner shall appear in the trial court on 14.1.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv