IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 1900 of 2009() ------------------------------ CRA.605/2007 of III ADDL.SESSIONS COURT, ERNAKULAM CC.14/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE(ECONOMIC OFFENCES), ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------- A.R.AJIKUMAR, S/O.RAMAN, KULATHAKATH HOUSE, CHERUVALLY P.O., MANIMALA VIA, KANJIRAPPALLY, KOTTAYAM DISTRICT. BY ADV. SMT.MINI ELIZABETH GEORGE RESPONDENT(S):RESPONDENTS/ COMPLAINANT AND STATE:1 -------------------------------------- 1. SHAAN FINANCE LTD., FLAT NO.611, BARTON CENTRE, NO.84, M.G.ROAD, BANGALORE, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, K.B.EDISON, 1/691, KAITHAVALAPPIL HOUSE, POND VILLAGE, FORT KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1900 of 2009 -------------------------------------- Dated this the 18th day of June, 2009. ORDER Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned III Additional Sessions, Ernakulam confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the sentence and the amount of compensation payable by him. 3. Case arose on a private complaint preferred by respondent No.1 alleging that petitioner entered into a hire purchase agreement with it on 3.7.2002, availed a loan but defaulted payment of future instalments. Thereon petitioner issued Ext.P2, cheque dated 12.12.2003 for Rs.67,000/- in partial discharge of the liability. That cheque was dishonoured for insufficiency of funds. Respondent No.1 got intimation about the dishonour on 23.12.2003. Statutory notice was issued to the petitioner on 8.1.2004. It was served on petitioner on 12.1.2004. Petitioner did not pay the amount. Hence the complaint. Power of attorney holder of respondent No.1 gave evidence as PW1. Ext.P1 is the power of attorney. Ext.P2 is the cheque dated 12.12.2003. Its Crl.R.P.No1900 of 2009 2 dishonour for insufficiency of funds is proved by Exts.P3 and P4. That, respondent No.1 issued notice to the petitioner by registered post and it was served on petitioner are not disputed, and proved by Exts.P5 to P7. There is no challenge to the finding of the courts below as to the cause of dishonour and issue and service of notice. Challenge in this revision is to the finding regarding execution of the cheque. 4. When questioned under Section 313 of the Code of Criminal Procedure petitioner stated that he issued only a blank cheque to respondent No.1. 5. So far as competency of PW1 to give evidence is concerned, he has produced Ext.P1, power of attorney. He has also given evidence regarding the transaction. Courts below accepted that evidence. Petitioner does not dispute that he had hire purchase transaction with respondent No.1. He does not also dispute that Ext.P1 contained his signature and it was drawn on the account maintained by him. Admittedly, petitioner had handed over the cheque to respondent No.1. According to the petitioner, it was in blank form. Petitioner did not take any step to summon the relevant records from respondent No.1 if he has a case that no amount was due to respondent No.1. When respondent No.1 asserted and PW1 testified that petitioner defaulted payment of the instalments, it was upto the petitioner to show that he had not defaulted any instalment by producing the receipts if any for payment of the amount or, if necessary by summoning the relevant documents from respondent No.1. Nothing of that sort happened. What is available is only a mere suggestion to PW1 that petitioner did not owe any amount as stated in the cheque. It is also to Crl.R.P.No1900 of 2009 3 be borne in mind that inspite of being intimated about the dishonour of the cheque and being called upon to pay the sum of Rs.67,000/-, petitioner did not reply to that notice. Courts below have taken these aspects into account to hold that the due execution of the cheque is proved by respondent No.1. Nothing is brought out to disbelieve the evidence of PW1. Petitioner was not able to point out any illegality, irregularity or impropriety in the finding or proceedings of the courts below calling for interference in revision. Hence the challenge to the conviction of the petitioner cannot be sustained. 6. Though learned magistrate sentenced petitioner to undergo simple imprisonment for one month and directed him to pay compensation of Rs.70,000/- with a default sentence, appellate court modified the substantive sentence as simple imprisonment till rising of the court and compensation payable was reduced to Rs.65,000/-. Petitioner was sentenced to undergo simple imprisonment for two months in case of failure to pay that amount. There is little reason to interfere with the modified sentence, amount directed by the appellate court to be paid by the petitioner by way of compensation or the default sentence provided by the appellate court. 7. Learned counsel for petitioner requested three months’ time to deposit compensation as ordered by the appellate court. Counsel says that petitioner is unable to raise the sum of Rs.65,000/- immediately. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant three months’ time to deposit/pay the compensation as ordered by the appellate court. Resultantly, this revision petition fails. It is dismissed. Petitioner is Crl.R.P.No1900 of 2009 4 granted three months’ time to deposit the compensation in the trial court as ordered by the appellate court. In case of failure to deposit compensation as aforesaid, he shall undergo simple imprisonment as ordered by the appellate court. It is made clear that it will be sufficient compliance with direction for deposit 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 its counsel acknowledging receipt of compensation within the aforesaid time. Petitioner shall appear in the trial court on 22.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 22.9.2009. Crl.M.A.No.5824 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks