IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 CRL.REV.PET.NO. 2101 OF 2009() ---------------------------------------------- CRA.317/2007 OF SESSIONS COURT, THODUPUZHA ST.103/2006 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): ACCUSED -------------------------------------------------- BINOY MATHEW, PROPRIETOR, EDAYALIL INDUSTRIES, POOVENTHURUTHU P.O., KOTTAYAM-12. BY ADV. SRI.JOICE GEORGE RESPONDENT(S): COMPLAINANT & STATE -------------------------------------------------------------- 1. P.H.HAMEED, PUTHENVEETTIL HOUSE, KALAYANTHANI KARA, THODUPUZHA, IDUKKI DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2101 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Sessions Judge, Thodupuzha in Crl.Appeal No.317 of 2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). 2. Respondent No.1 preferred a private complaint. His case is that he is engaged in timber business and petitioner purchased timber from him in August, 2004. For the sum of Rs.1,90,000/- due to him petitioner issued four cheques (Ext.P1 series). Those cheques were dishonoured for insufficiency of funds as proved by Ext.P2 series. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are proved by Exts.P3 to P5 series. Respondent No.1 gave evidence as P.W.1 regarding the transaction and execution of the cheques. According to petitioner he has not purchased any timber from respondent No.1. His former Manager, Naveen (D.W.1) stealthily took the cheques along with other documents from his office and those cheques are misused. D.W.1 admitted that he had been working as Manager of petitioner but denied that the cheques and other CRL. R.P. No.2101 of 2009 -: 2 :- documents were taken by him from the office of petitioner. He claimed that he saw respondent No.1 for the first time when he was summoned to the office of Deputy Superintendent of Police (in connection with the complaint preferred by petitioner). Courts below were not impressed by the contention raised by petitioner, accepted the evidence of respondent No.1 and found the petitioner guilty. Challenge in this revision is only regarding execution of the cheques. It is contended by learned counsel for petitioner that finding of the courts below in that regard is not correct. 3. It is not disputed by petitioner that Ext.P1 series are signed by him and drawn on the account maintained by him. According to him, he had no transaction with respondent No.1 at a time when D.W.1 was working as his Manager, he stealthily got the cheques and handed over the same to respondent No.1. D.W.1 has denied that. There is no evidence to show that respondent No.1 stealthily got custody of the cheques (Ext.P1 series). Petitioner, it is not disputed is a business man. ln spite of signed cheques and other documents being allegedly stolen from his office he has not intimated his bank about that and requested stoppage of payment as per those cheques. He did not also put such a contention to respondent No.1 when the latter served notice of dishonour on him and he was called upon to make payment. In the circumstances, contention raised by CRL. R.P. No.2101 of 2009 -: 3 :- petitioner regarding his missing of cheques has only to be considered as the result of an afterthought. Nothing is brought out to disbelieve the evidence of respondent No.1 regarding transaction and execution of the cheques. Courts below have assessed the evidence let in and found in favour of due execution of the cheque. There is no reason to interfere with that finding. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed him to pay Rs.2,05,000/- as compensation. In default of payment, sentence of simple imprisonment for three months also was provided. Appellate court did not interfere with either conviction or sentence. On a consideration of the circumstances of the case, nature of the offence and object of legislation I am satisfied that simple imprisonment till rising of the court will be sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation and the default sentence provided. 5. Counsel requested four months’ time to deposit the fine in the trial court. Counsel submits that petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel I am inclined to grant three months’ time to the petitioner to deposit compensation in the trial court. Resultantly, this revision is allowed in part to the following CRL. R.P. No.2101 of 2009 -: 4 :- extent: (i) Substantive sentence is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted three months' time from this day to deposit the compensation as ordered by the trial court. (iii) It is made clear that it shall be sufficient compliance of condition (ii) 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 his counsel acknowledging receipt of compensation within the said period of three months. Petitioner shall appear in the trial court on 5.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv