IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.REV.PET.NO. 2347 OF 2009() --------------------------------------------- CRA.560/2007 OF ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.1197/2004 OF JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- M.A.ALEX, AGED 66 YEARS, AYIKKARA MURIYIL BUNGLOW, PUNNAMOODU, MAVELIKARA NOW RESIDING AT THOPPIL HOUSE, KOCHICKEL MURI, MAVELIKARA VILLAGE, ALAPPUZHA. BY ADV. SRI.S.MOHANAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------- 1. V.K.YOHANNAN, MANKAMKUZHY, MAVELIKKARA TALUK, ALAPPUZHA. 2. STATE OF KERALA, REP. 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 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2347 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of July, 2009 O R D E R -------------- This revision is in challenge of concurrent finding entered by the courts below regarding due execution of a cheque for the discharge of a legally enforceable debt/liability. According to respondent No.1, petitioner owed Rs.1,87,500/- to him and for discharge of that liability issued Exts.P1 to P3, cheques dated 31.3.2004, 30.4.2004 and 30.6.2004 for Rs.62,500/- each. Dishonour of those cheques for insufficiency of funds is proved by Ext.P4. Service of statutory notice on petitioner is proved by Ext.P5 series. Respondent No.1 gave evidence as P.W1 regarding the transaction and execution of cheque. According to him petitioner borrowed Rs.3,02,000/- in the year 2000 and the cheque issued for repayment of that amount was dishonoured. Thereon he filed C.C.No.88 of 2001 against the petitioner. That case was settled as per an agreement dated 19.1.2004 as per which respondent was to get Rs.2,50,000/- to be paid by petitioner in four installments of Rs.62,500/- each. First installment of Rs.62,500/- was paid and balance amount was payable as per Exts.P1 to P3 which went in dishonour. Exhibit P6 is the agreement dated 19.1.2004. CRL. R.P. No.2347 of 2009 -: 2 :- According to the petitioner no amount was due to respondent No.1. Courts below did not accept that contention. Exts.P1 to P3 which created liability on petitioner are produced by respondent No.1. It is not disputed that petitioner had issued those cheques to respondent No.1. There is also no dispute about the original transaction of the year 2000, respondent No.1 filing CC No.88 of 2001 and thereafter parties entering into Ext.P6, agreement as per which CC No.88 of 2001 was withdrawn. Courts below were not inclined to believe the evidence of petitioner as D.W.1 that the entire amount was paid. Petitioner did not reply to the statutory notice sent to him. In these circumstances I do not find reason to interfere with the finding of the courts below regarding due execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act also. 2. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year and directed payment of Rs.2,00,000/- as compensation with a default sentence of imprisonment for four months. Appellate court modified the substantive sentence as simple imprisonment for three months but retained the direction for payment of compensation and modified the default sentence as imprisonment for three months. It is contended by learned counsel that substantive CRL. R.P. No.2347 of 2009 -: 3 :- sentence awarded is excessive. Having regard to the nature of offence and object of legislation I am inclined to think 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 as ordered by the appellate court. 3. Counsel for petitioner requested five months’ time to deposit compensation. Counsel submits that petitioner is in financial difficulty and unable to raise the amount immediately. Considering the circumstances stated by learned counsel I am inclined to grant time till 30.12.2009 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) While retaining the direction for payment of compensation as confirmed by the appellate court and default sentence as modified by the appellate court, petitioner is granted time till 30.12.2009 to deposit CRL. R.P. No.2347 of 2009 -: 4 :- compensation in the trail court. (iii) It is made clear that it shall be sufficient compliance with the direction for payment of compensation 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 the compensation within the 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 petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv