IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 580 of 2001() ----------------------------- CRA.198/2000 of SESSIONS COURT, KOTTAYAM CC.805/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- P.M.ABRAHAM, PALLIPARAMBIL, PUTHENANGADY, KOTTAYAM. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. P.M.M.SALI, MOULANA MANZIL, VELOOR KARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.RAVINDRA BABU FOR R1 SRI.SURIN GEORGE IPE FOR R1 PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 9/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.580 of 2001 -------------------------------------- Dated this the 9th day of December, 2008. ORDER Heard counsel on both sides. 2. Amount covered by the cheque in question is Rs.2000/-, it was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand, revision petitioner did not pay the said amount. Learned Chief Judicial Magistrate found the revision petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment for two months and payment of fine of Rs.2,500/- under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). In appeal, substantive sentence was modified as simple imprisonment for one month but revision petitioner was directed to pay fine of Rs.4,000/- with a further direction that out of the said amount, Rs.2,000/- will be paid to the first respondent by way of compensation. Aggrieved, revision petitioner has come up in revision. 3. Learned counsel for revision petitioner contended that conviction is not legal and proper and that it was the insistence of the first respondent to get exorbitant interest that resulted in the complaint. Counsel for first respondent contended that conviction is legal and proper 4. Ext.P1 is the cheque in question. Its dishonour for insufficiency of funds is proved by Ext.P2. There is no challenge to the finding of Crl.R.P.No.580/2001 2 courts below regarding the dishonour of cheque. Exts.P3 to P5 would show that dishonour was intimated to the revision petitioner and he was called upon to pay the amount. Revision petitioner had a case that he paid the amount either within the statutory period or thereafter. First respondent, examined as PW1 testified his case. On going through the statement of the revision petitioner under Section 313 of the Code of Criminal Procedure, it is clear that apart from making denial of execution of the cheque he did not explain howelse the cheque leaf signed by him happened to be in the custody of the first respondent. I do not find anything illegal or irregular in the finding of the courts below regarding due execution of the cheque. If the contention raised by the revision petitioner was bona fide, he could have sent Rs.2,000/- by way of cheque or demand draft to the first respondent on getting notice of dishonour. That, he did not do. Instead, he contested the case though the amount involved was only Rs.2,000/- Therefore, there is no justification in contending that it was the stand of the first respondent which resulted in the complaint. Conviction, in the circumstances need no interference. However, considering the nature of offence, I am inclined to think that simple imprisonment till rising of the court is sufficient to meet the ends of justice. At the same time, first respondent who has suffered loss at the hands of the revision petitioner is to be compensated. Considering all relevant facts and circumstances of the case, compensation payable to the first respondent is fixed as Rs.5,000/-. Revision petition therefore, is allowed in part in the following lines:- i. Substantive sentence awarded to the revision Crl.R.P.No.580/2001 3 petitioner is modified as simple imprisonment till rising of the court. ii. Revision petitioner is directed to deposit in the trial court for payment to the first respondent as compensation Rs.5,000/- (Rupees Five thousand only) within one month from this day failing which, revision petitioner shall undergo simple imprisonment for one month. iii. It is made clear that it will be sufficient compliance with direction No.(ii) if the revision petitioner paid the amount to the first respondent through his counsel in the trial court and a statement is filed by the first respondent through his counsel in the trial court within the said period of three months acknowledging receipt of the amount. iv. Revision petitioner shall surrender in the trial court on 12.1.2009 to receive the sentence. vi. Bail bond is cancelled. Crl.M.P.No.2784 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.580/2001 4 Thomas P.Joseph, J. ` Crl.R.P.No.580 of 2001 ORDER 9th December, 2008