IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.Rev.Pet.No. 2604 of 2009() ------------------------------ CRA.85/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.338/2006 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- SAM VARGHESE, NADAVALLIL HOUSE, THYAZHAKARA MURI, MAVELIKARA. BY ADV. SRI.E.RAFEEK SRI.GOKUL DAS V.V.H. RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. JAYA OOMMEN SAMUEL, KADAVIL HOUSE, VAZHUVADI MURI, THAZHAKKARA VILLAGE, MAVELIKARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2604 of 2009 --------------------------------------- Dated this 19th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of concurrent finding entered by the courts below as to the due execution of a cheque for discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Mavelikkara in C.C.No.338 of 2006 for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.135000/- from him and for repayment of that amount issued Ext.P1, cheque dated 17-08-2005. That cheque on presentation was dishonoured for insufficiency of funds as proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 and P4. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, no amount was due to respondent No.1. Courts below did not accept that contention. 3. Respondent No.1 in his evidence as PW1 stated that for discharge of liability, petitioner had issued a cheque earlier which on Crl.R.P.No.2604 of 2009 2 presentation was dishonoured for insufficiency of funds. Based on that cheque respondent No.1 filed a complaint against petitioner as C.C.No.368 of 2002. While that case was pending the matter was settled between the parties and that case was withdrawn. Pursuant to that settlement petitioner issued Ext.P1, cheque dated 17-08-2005 for the discharge of liability which again was dishonoured as per Exts.P2 and P3. Exts.D1 to D3 produced by petitioner only corroborated that case of respondent No.1. There is no evidence to show that while settling C.C.No.368 of 2002 petitioner had discharged the liability. Courts below have considered the evidence and found in favour of due execution of the cheque. It is also relevant to note that petitioner has not replied to the statutory notice served on him. In the circumstances, there is no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There is also a direction for payment of Rs.135000/- (Rupees One Lakh Thirty Five Thousand Only) by way of compensation and default sentence of imprisonment for three months. It is submitted by learned counsel that the matter is already settled between petitioner and respondent No.1. Petitioner has produced a document in proof of that. Petitioner has also filed Crl.M.A.No.8196 of 2009 to record compromise. But that application cannot be Crl.R.P.No.2604 of 2009 3 entertained as the composition is not signed by respondent No.1 and/or counsel says that respondent No.1 is outside India and would return only after a few months. In the above circumstances Crl.M.A.No.8196 of 2009 is dismissed. Considering the nature of the offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation or default sentence at the instance of petitioner. Considering the facts and circumstances of the case I am inclined to grant time till 15-12-2009 to deposit/pay compensation/file statement. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 15-12-2009 to deposit compensation/file statement in the trial court. 3. It is made clear that it will be sufficient compliance of 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 period aforesaid. 4. Petitioner shall appear in the trial court on 17-12-2009 to receive the Crl.R.P.No.2604 of 2009 4 sentence. Execution of warrant if any against the petitioner will stand in abeyance till 17-12-2009. THOMAS P JOSEPH, JUDGE Sbna/