IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST APRIL 2009 / 1ST VAISAKHA 1931 Crl.Rev.Pet.No. 1372 of 2009() ------------------------------ CRA.175/2007 of SESSIONS COURT, PALAKKAD CC.75/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MUSTAPHA @ MUTHU, AGED ABOUT 40 YEARS, S/O.HAMSA HAJI, VARAMANGALATHU VEEDU, KARAKKADU P.O., KONDURKARA, OTTAPALAM THALUK, PALAKKAD. BY ADV. SRI.V.JOHN S. RALPH RESPONDENT(S): RESPONDENT/COMPLAINANT -------------------------- 1. SHAHUL HAMEED, AGED 47 YEARS, S/O.MUHAMMED, P.O.KALLADIPOTTA, PULAKKAL HOUSE, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SHRI P.A.SALIM FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1372 of 2009 -------------------------------------- Dated this the 21st day of April, 2009. ORDER Public prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass. 2. Revision petitioner faced trial in the court of learned Judicial Magistrate of First Class, Pattambi in C.C.No.75 of 2004 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case set up by respondent No.1 is that petitioner borrowed Rs.2,50,000/- from him on 5.1.2002 in connection with his construction work and for the discharge of that liability, issued Ext.P1, cheque dated 17.3.2002. That cheque was presented for encashment but it was dishonoured for insufficiency of funds as proved by Exts.P2 and P6 and the evidence of PW2. Respondent No.1 issued notice to the petitioner intimating the dishonour and demanding payment of the amount as proved by Exts.P3 to P5. Petitioner did not respond and hence, the complaint. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. The defence set up by the petitioner is that he had borrowed only Rs.25,000/- and given a signed blank cheque as security which in spite of the repayment of the entire amount was not returned. Learned magistrate found from the evidence that petitioner issued the cheque for discharge of a legally enforceable Crl.R.P.No.1372/2009 2 debt/liability, placed reliance on the presumption under Section 139 of the Act and found the petitioner guilty. It is contended that the finding as confirmed by the appellate court is not correct. 3. It is not very much in dispute that petitioner had handed over Ext.P1, cheque according to him in signed blank condition to respondent No.1. His case is that he had borrowed only Rs.25,000/- and that amount was returned. But, in that regard what is available is only the suggestion made by the petitioner. There is no circumstance and much less, any evidence suggesting and probabilising the defence set up by the petitioner. Respondent has given evidence as PW1 as to the transaction and the execution of the cheque. Nothing is brought out to disbelieve the evidence of respondent No.1. Petitioner did not even send a reply to the statutory notice served on him. Respondent No.1 is also entitled to rely on the presumption under Section 139 of the Act. Petitioner has not rebutted that presumption. In the circumstances, courts below are justified in accepting and acting upon the evidence of PW1 and Exts.P1 to P6. 4. There appears to have been a clerical mistake as to the date of dishonour of the cheque which has been corrected through the evidence of PW2, manager of the drawee bank. On going through the judgments under challenge, I do not find reason to interfere with the finding of the courts below as to guilt of the petitioner under Section 138 of the Act. Crl.R.P.No.1372/2009 3 5. So far as sentence is concerned, learned magistrate ordered the petitioner to undergo simple imprisonment for three months and payment of compensation of Rs.2,50,000/- with a default clause. That has been confirmed by the appellate court. Learned counsel contended that sentence imposed is excessive. He also requested six months' time to deposit the compensation. He submitted that in a similar matter between the same parties, petitioner has been directed to pay Rs.3,25,000/- as compensation. 6. Considering the nature of the offence, the object of legislation and the amount involved, I am inclined to think that simple imprisonment till rising of the court and payment of compensation as awarded by the courts below will sufficient punishment in the ends of justice. In the facts and circumstances of the case petitioner is granted four months' time from today to pay the compensation to respondent No.1. Resultantly, this revision is allowed in part as under: Sentence awarded by the learned magistrate as confirmed by the appellate court is modified as follows: i. Petitioner shall undergo simple imprisonment till rising of the court. Crl.R.P.No.1372/2009 4 ii. Petitioner shall deposit in the trial court for payment to respondent No.1 the sum of Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) as compensation within four months from today failing which, he shall undergo imprisonment for one month. It is made clear that it will be sufficient compliance with direction No.ii if within the aforesaid time, petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed statement in the trial court through his counsel within the aforesaid time acknowledging receipt of the amount. iii. Petitioner shall surrender in the trial court on 24.8.2009 to receive the sentence. Crl.M.A.No.4084 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks