IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.REV.PET.NO. 1598 OF 2002() --------------------------------------------- CRA.152/1998 OF ADDL.SESSIONS COURT, KOTTAYAM STC.1393/1995 OF JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------ M.K.JOSEPH, MULLAKKERICHIRAYIL HOUSE, CHEMMANATHUKARA MURIYIL, VAIKOM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.GEORGE KARITHANAM VARGHESE SRI.JOSEPH A.VADAKKEL SRI.V.J.JOHN SRI.C.I.ABRAHAM SRI.JOSE KURIAKOSE (VILANGATTIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ----------------------------------------------------------------------------------- 1. K.J.MATHEW, KUNNAICKAL VEEDU, KUDAVECHOOR KARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN R2 SRI.SIBY MATHEW FOR R1 SRI.PHILIP J.VETTICKATTU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1598 of 2002 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of August, 2009 O R D E R -------------- Heard both sides. 2. Learned counsel for petitioner reported on 3.8.2009 that as per information received petitioner is no more. Thereon counsel for petitioner was directed to ascertain and report whether petitioner is alive or not. For report and steps case was posted to this day. Learned counsel for petitioner submits that petitioner is no more. It is also submitted that nobody has come forward to continue with the revision petition. Since revision has been admitted, no question of abatement would arise and this Court is required to dispose of the revision on merit. 3. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl. Appeal No.152 of 1998 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.30,000/- and for repayment of that amount petitioner issued Ext.P1, cheque dated 12.3.1994. That cheque was dishonoured for CRL. R.P. NO.1598 OF 2002 -: 2 :- insufficiency of funds as proved by Exts.P2 and P3. Statutory notice issued to the petitioner in his official address was served on him as seen from Exts.P4 and P5. Respondent No.1 gave evidence as P.W1 and testified to his case. Contention of petitioner was that his son had borrowed Rs.30,000/- from respondent No.1 and given a signed blank cheque belonging to him as security. That cheque has been misused by respondent No.1. Courts below did not accept that explanation of petitioner and found him guilty. Concurrent finding is under challenge in this revision. 4. It is not disputed that Ext.P1 is signed by petitioner and drawn on the account maintained by him. His contention is that he had no transaction with respondent No.1 and instead his son had borrowed Rs.30,000/- from respondent No1. Further contention is that his son had handed over his signed blank cheque. Suggestion in that line is denied by respondent No.1. Respondent No.1 asserted that petitioner borrowed Rs.30,000/- from him and issued the cheque. Petitioner did not adduce evidence or bring out circumstances to prove or probabilise his contention. Courts below found no reason to disbelieve the evidence of respondent No.1. It is seen from the judgment of learned Additional Sessions Judge that in the appeal an attempt was made by petitioner to summon respondent No.1 as a witness. Learned Additional Sessions Judge rejected the request of CRL. R.P. NO.1598 OF 2002 -: 3 :- petitioner holding that respondent No.1 cannot be summoned as a witness on the side of petitioner. I have gone through the judgments under challenge and find no reason to interfere with the concurrent finding entered by the courts below regarding due execution of the cheque. Petitioner was not able to rebut the presumption under Sec.138 of the Act. 5. A further contention raised is that there was no proper service of notice on petitioner. It is contented that failure of respondent No.1 to produce copy of notice is fatal. Exhibits P4 and P5 show that in the official address of petitioner notice was served on him. It is not disputed that during the relevant time petitioner was working in that address. If petitioner has a case that notice issued to him was not valid he could have very well produced the same since he was in possession of the original. That having not been done contention that notice issued to him was not valid cannot be accepted. 6. What remained for consideration is whether sentence awarded by the trial court as modified by the appellate court is excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay fine of Rs.60,000/- and in default of payment to undergo imprisonment for twenty days. Appellate court did not interfere with CRL. R.P. NO.1598 OF 2002 -: 4 :- the substantive sentence. Sentence of fine was converted as compensation of Rs.30,000/- but no default sentence was imposed. Since petitioner is no more, sentence of imprisonment has become unexecutable and in the circumstances there is no need to impose a default sentence in case of non-payment of compensation But there is no reason to interfere with the direction for payment of compensation. 7. It is submitted by learned counsel for respondent No.1 that this Court on 6.3.2003 directed petitioner to deposit Rs.15,000/- as a condition for suspension of sentence. Counsel for petitioner was not able to confirm whether there was any such deposit. It is directed that since appellate court has directed payment of compensation to respondent No.1 amount if any deposited by petitioner in any of the courts below shall be paid to respondent No.1. It is made clear that it is open to respondent No.1 to realise the rest of the compensation payable if respondent No.1 is entitled to such a course as per the law. Resultantly with the above direction regarding withdrawal of the amount if any, in deposit this revision petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. NO.1598 OF 2002 -: 5 :- THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.1598 OF 2002 =================== O R D E R 17TH AUGUSUT, 2009