IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 CRL.REV.PET.NO. 1458 OF 2001() ------------------------------------------- CRA.122/1998 OF ADDL.SESSIONS COURT, KOTTAYAM ST.1909/1993 OF JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------ V.A. AYYAPPAN ACHARI, S/O.AYYAPPAN ACHARI, SREEDEVI SADAN, KARAKKATTU P.O., KULAMADA VILLAGE, KOZHENCHERRY. BY ADV. SRI.V.K.SUNIL RESPONDENT(S) - STATE & COMPLAINANT: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAJU SEBASTIAN, S/O. DEVASSIA, YEEROORICKAL HOUSE, KANIYAKKADU KARA, PULIYANNOOR VILLAGE, PALA. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.1458 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 10th day of December, 2008 O R D E R -------------- Second respondent though served with notice remain absent. There is no representation. Counsel for revision petitioner represents that he is relinquishing Vakalath for revision petitioner. Revision petitioner also is absent. 2. This revision arises from S.T. No.1909 of 1993 of the Court of Judicial First Class Magistrate, Pala convicting the revision petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and sentencing him to undergo simple imprisonment for three months. Revision petitioner preferred appeal. Appellate court while confirming conviction modified the sentence as simple imprisonment for one month. It is contended in this revision that conviction of revision petitioner is not legal or proper and that sentence is excessive. 3. Perused records. 4. Case of second respondent is that revision petitioner borrowed Rs.22,165/- from him and issued Exhibit P1, cheque dated 22.4.1993, that cheque was dishonoured for insufficiency of funds and CRL. R.P. NO.1458 of 2001 -: 2 :- in spite of dishonour intimation and demand, revision petitioner did not pay the amount. Dishonour of cheque as above stated is proved by Exhibits P2, P3 and P6 and evidence of P.W.2, Manager of drawee bank. Second respondent gave evidence as P.W.1 and testified to his case. Version of revision petitioner as seen from the statement under Section 313 of the Code of Criminal Procedure is that his nephew was working in the jewellery shop of second respondent, a signed blank cheque was given to the second respondent as security in connection with that and that was misused. 5. So far as the transaction which culminated in Exhibit P1, cheque is concerned, evidence is given by the second respondent. He asserted that revision petitioner borrowed money from him and issued the cheque. He admitted that after the case was filed and revision petitioner appeared in the trial court, he gave Rs.10,000/-. So far as the revision petitioner is concerned, it is seen that such a contention was not even suggested to the second respondent when the latter was in the box. Instead, the only suggestion made to the second respondent was that he was a money lender. It is pertinent to note that in spite of being served with notice of dishonour and demand of payment, revision petitioner did not reply. On going through the CRL. R.P. NO.1458 of 2001 -: 3 :- evidence I find no reason to disbelieve the evidence of the second respondent regarding the execution Exhibit P1. Due execution of the cheque is proved. Revision petitioner has not reubutted the presumption under Section 139 of the Act. So far as legality of recoverability of debit/liability is concerned, there is evidence of second respondent that revision petitioner borrowed the amount from him and issued Exhibit P1 for discharge of that debt. Conviction of revision petitioner in the circumstance required no interference. 6. So far as sentence is concerned, second respondent also admitted that after filing of the complaint, revision petitioner paid Rs.10,000/- and balance amount due is only Rs.12,165/-. In the circumstances I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time revision petitioner has to compensate second respondent for loss caused to him. He is directed to pay Rs.13,000/- as compensation to the second respondent. Resultantly, revision petition is allowed in part in the following terms: (i) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. CRL. R.P. NO.1458 of 2001 -: 4 :- (ii) Revision petitioner is directed to deposit in the trial court for payment to the second respondent Rs.13,000/- (Rupees Thirteen thousand only) within three months from this day failing which he shall undergo simple imprisonment for two months. (iii) It is made clear that it will be sufficient compliance with direction contained in clause (ii) if revision petitioner paid the compensation to the second respondent through his counsel in the trial court and second respondent filed a statement in the trial court though counsel within the said period of three months acknowledging receipt of amount. (iv) Revision petitioner shall surrender in the trial court on 16.3.2009 to receive the sentence. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.6890 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. NO.1458 of 2001 -: 5 :- THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.1458 OF 2001 =================== O R D E R DECEMBER, 2008