IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 1764 of 2009() ------------------------------ CRA.527/2005 of ADDL.SESSIONS COURT, THALASSERY CC.569/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------- JOYKUTTY ABRAHAM, AGED 56 YEARS, S/O.ABRAHAM, VAYATHOOR AMSOM, ULICKAL DESOM, KANNUR DISTRICT. BY ADV. SRI.ROBIN THOMAS PHILIP RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------- 1. P.V.RANJITH, AGED 38 YEARS, PROPRIETOR, B.R.SYSTEMS, URUVACHAL P.O., PAZHASSI AMSOM, NELLUNNI DESOM, THALASSERY TALUK, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1764 of 2009 -------------------------------------- Dated this the 8th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudical to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a complaint preferred by respondent No.1 alleging that the cheques (Exts.P2 and P5) dated 17.12.2001 and 15.2.2002 issued by the petitioner were dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. 3. Case of respondent No.1 is that petitioner purchased electronic items from his shop on credit and for the sum of Rs.1,28,393/- due, issued Exts.P2 and P5, cheques which were dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P11. Exts.P1, P3 and P4 are the bills and delivery note dated 2.11.2001, 21.12.2001 and 1.1.2002 for sale of electronic items to the petitioner. Exts.P2 and P5 are the cheques allegedly issued by the petitioner for the discharge of the liability covered by Exts.P1, P3 and P4. Ext.P6 is the receipt dated Crl.R.P.No.1764/2009 2 27.5.2001 produced by respondent No.1. Dishonour of the cheque for the above said reason and issue and service of statutory notice are proved by Exts. P7 to P11. Finding regarding dishonour, issue and service of notice are not challenged. 4. Contention raised by the petitioner is that he did not owe any amount as stated in Exts.P2 and P5 and that those cheques were given to respondent No.1 as security at the time he purchased electronic items from the shop run by respondent No.1. Respondent No.1 has given evidence regarding the transaction. He has proved Exts.P1, P3 and P4 as per which petitioner purchased electronic items. It is not disputed by the petitioner also that he used to purchase electronic items from respondent No.1 on credit as is evident from his contention that the cheques in question were given as security at the time of transaction. Apart from suggesting to respondent No.1 that he did not owe any such amount, no serious attempt was made to discredit the evidence of respondent No.1 as to the transaction and execution of the cheques. Exts.P1, P3 and P4 also are not in dispute. Failure to send a reply to the notice is also material and relevant. Nothing was brought out to disbelieve the evidence of respondent No.1. It is proved that the cheques in question contained the signature of the petitioner and are drawn on the account maintained by him. In these circumstances courts below are justified in concluding that petitioner issued Exts.P2 and P5, cheques for the discharge of the legally enforceable debt/liability. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Therefore, conviction is legal and proper and required Crl.R.P.No.1764/2009 3 no interference. 5. Learned counsel submitted that the appellate court was not justified in enhancing the compensation awarded by the trial court. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. There was also a direction to pay Rs.1,28,393/- as compensation to respondent No.1 and in case of default, to undergo simple imprisonment for three months. Substantive sentence awarded by the learned magistrate was modified by the appellate court as simple imprisonment till rising of the court. Compensation payable was enhanced to Rs.1,35,000/-. Default sentence was modified to simple imprisonment for one month. Compensation is not part of the sentence and hence, it was well within the power of the appellate court to enhance the compensation as the appellate court is entitled, under Section 357 (4) of the Code of Criminal Procedure to award compensation. It is seen from the judgment of the appellate court that counsel for the appellant was not present when the appeal was taken up for hearing. Exts.P2 and P5, cheques are dated 17.12.2001 and 15.2.2002. Those cheques, as proved by respondent No.1 were issued in the course of business transaction. Considering these aspects I do not find anything illegal, improper or irregular in the appellate court enhancing the compensation from Rs.1,28,393/- to Rs.1,35,000/- while modifying the substantive sentence of simple imprisonment for six months to imprisonment till rising of the court. No interference is required with the modification of the substantive sentence or, the direction for payment of compensation as ordered by the appellate court. Crl.R.P.No.1764/2009 4 6. Learned counsel for petitioner requested four months' time to deposit the compensation. Counsel submitted that the business of the petitioner has run into difficulties and the petitioner required atleast four months' time to deposit the compensation. Learned counsel submits that petitioner is prepared to deposit the compensation in the trial court in two instalments. Considering the circumstances stated and difficulties expressed by the learned counsel as to the difficulty of the petitioner to raise the amount of compensation, I am inclined to grant four months' time to the petitioner to pay the compensation. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted four months' time from today to deposit the compensation in the trial court as ordered by the appellate court. It will be open to the petitioner to deposit the compensation in the trial court within the said period in two instalments. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. Crl.M.A.No.5402 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks