IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2784 of 2009() ------------------------------ CRA.7/2009 of ADDL.SESSIONS JUDGE(SPL. COURT FOR NDPS ACT CASES), THODUPUZHA CC.844/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS-I , THODUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------- SHAJI JOHN, S/O.JOHN, PARAKKATTU HOUSE, PALAMEDU P.O., EDAKKARA, NILAMBOOR, MALAPPURAM DISTRICT. BY ADV. SRI.C.A.RAJEEV RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. V.J.KURIAKOSE, S/O.JOHN, NAMBIAPARAMBIL HOUSE, VANNAPPURAM P.O., VANNAPPURAM VILLAGE, THODUPUZHA TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2784 of 2009 -------------------------------------- Dated this the 27th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and Public Prosecutor who takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge(Special Judge for NDPS Act Cases), Thodupuzha in Crl.Appeal No.7 of 2009 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to the complainant petitioner owed Rs.2,25,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 15.1.2006. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. According to the petitioner, he is an employee of an immigrant consultancy and, the owner of the concern may have given his cheque to respondent No.1. Learned magistrate found in favour of due execution of the cheque and convicted petitioner. That was confirmed by the appellate court. The concurrent finding is under challenge. 3. Respondent No.1 in his evidence as PW1 contended that petitioner is a consultant of the immigrant consultancy and he had obtained work permit to his daughter to England. As demanded by petitioner he gave Rs.2,25,000/- to Crl.R.P.No.2784/2009 2 the petitioner on 24.8.2005 but as promised petitioner could not arrange the work permit. Thereon respondent No.1 demanded repayment of the amount. Petitioner agreed to repay the amount and issued the cheque. Petitioner does not dispute that he is associated with the immigrant consultancy though he claimed that he is an employee. He could have examined the owner if any of the immigrant consultancy to show that he is only an employee and that he had no transaction with respondent No.1. Petitioner has not produced any evidence or brought out circumstance to show that he is only an employee of the concern and that he had no transaction with respondent No.1. It is also difficult to believe that signed blank cheque of the petitioner was given to respondent No.1 by the owner without his knowledge. Atleast when statutory notice was served on petitioner, one expected him to give a reply to respondent No.1. That was not done. Courts below found that there was nothing brought out to disbelieve evidence of respondent No.1. On going through the judgments under challenge and hearing learned counsel I do not find reason to interfere with the concurrent finding of the courts below regarding due execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act and as such no interference is required with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There is also a direction for payment of compensation of Rs.2,25,000/- to respondent No.1 and in case of failure petitioner has to undergo simple imprisonment for three months. Appellate court did not interfere with the direction for payment of compensation or default Crl.R.P.No.2784/2009 3 sentence but modified substantive sentence as simple imprisonment for two months. It is contended by learned counsel that substantive sentence even as modified by the appellate court is excessive. 5. Learned counsel requested that petitioner may be granted six months’ time to deposit compensation since petitioner is in a financially difficult situation and is unable to raise the amount immediately. Further request is that petitioner may be permitted to pay compensation directly to respondent No.1. Having regard to the nature of offence and object of legislation I am satisfied 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 trial court and as confirmed by the appellate court. Counsel for petitioner submitted that a sum of Rs.50,000/- (Rupees Fifty thousand only) has already been deposited in the court of learned Judicial First Class Magistrate-I, Thodupuzha. Considering the circumstances stated by learned counsel and amount involved I am inclined to grant time to the petitioner till 15.1.2010 to deposit compensation. Resultantly, this revision petition 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 15.1.2010 to deposit compensation in the trial court as ordered by that court and confirmed by the appellate court. iii. It is directed that amount if any deposited by the petitioner in Crl.R.P.No.2784/2009 4 the trial court shall be adjusted in the compensation payable and such amount can be withdrawn by respondent No.1. iv. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid 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 compensation within the above said period. Petitioner shall appear in the trial court on 18.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks