IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2321 of 2009() ------------------------------ CRA.355/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.269/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------------- VIJAYAKUMAR, AGED 64 YEARS, S/O. GANGADHARA PANICKER, BINU BHAVANAM, MAHADEVIKAD P.O., KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(S)/ RESPONDENT/STATE AND COMPLAINANT: ------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABDUL RAHIM, AGED 52 YEARS, S/O. MUHAMMED KUNJU, NERESSERIL VEEDU, ARATTUPUZHA MURI, KARTHIKAPPALLY, ALAPPUZHA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2321 of 2009 -------------------------------------- Dated this the 29th day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Harippad in S.T.No.269 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner borrowed Rs.20,000/- from him and for repayment of that amount issued Ext.P1, cheque. Its dishonour for insufficiency of funds is proved by Exts. P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and spoke to his case. According to the petitioner he had no transaction with respondent No.2, instead, he had purchased gold and silver ornaments from M/s.Shabana jewellery in connection with the marriage of his daughter for a sum of Rs.1,02,022/- and paid Rs.35,000/- in cash. As security for the balance amount he gave a signed blank cheque to the owner of said M/s.Shabana Jewellery. He paid the entire amount and the jewellery owner issued Ext.D1, receipt. The signed blank cheque was misused. Petitioner gave evidence as DW2 and stated so. DW1 is a witness who supported petitioner. DW1 stated that he Crl.R.P.No.2321/2009 2 intervened and helped petitioner to purchase ornaments from M/s.Shabana Jewellers on credit. Courts below did not accept the evidence of DWs 1 and 2 and found that petitioner (DW2) issued the cheque for discharge of a legally enforceable debt/liability. That finding is under challenge in this revision. 3. Ext.D1 is the document produced by petitioner to show that he had transaction with M/s.Shabana Jewellery and discharged that liability. Respondent No.2 in his evidence as PW1 admitted that M/s.Shabana Jewellery belonged to his younger brother but he does not know whether petitioner had any transaction with M/s.Shabana Jewellery. He admitted that Ext.D1 is in the letter pad of M/s.Shabana Jewellery. But it is seen that the signature if any in Ext.D1 was not brought to the attention of respondent No.2. Owner of M/s.Shabana Jewellery is not examined to prove Ext.D1. In other words there was no evidence to show that Ext.D1 is signed by the owner of M/s.Shabana Jewellery. So far as evidence of DW1 is concerned, he stated that petitioner purchased gold ornaments from M/s.Shabana Jewellery and issued signed blank cheque to its owner. But when petitioner was examined as DW2 he stated that the ornaments were purchased not by him but his wife and daughter. There is no reliable evidence to show that Ext.P1 was entrusted to the owner of M/s.Shabana Jewellery in the circumstances pleaded by the petitioner. It is also seen that petitioner did not reply to the statutory notice served on him. Petitioner has no acceptable explanation for not replying to the statutory notice. In these circumstances I do not find reason to interfere with the conviction of the petitioner. Crl.R.P.No.2321/2009 3 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. There is a direction for payment of compensation of Rs.20,000/- to respondent No.2. A default sentence of imprisonment for two months is also provided. Appellate court confirmed the sentence, direction for payment of compensation and default sentence. It is contended that sentence imposed is excessive. It is requested that petitioner may be permitted to pay compensation directly to respondent No.2. The further request is that since petitioner on account of financial difficulties is unable to raise the amount immediately, he may be granted six months’ time to deposit compensation. 5. Having regard to the nature of offence, I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation or the default sentence imposed. Considering the circumstances stated by learned counsel, I am inclined to grant time till 30.12.2009 to the petitioner to deposit compensation. . Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted time till 30.12.2009 to deposit compensation as ordered by the trial court. iii. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid compensation to Crl.R.P.No.2321/2009 4 respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks