IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 2233 of 2009() ------------------------------ CRA.337/2007 of ADDL. SESSIONS COURT, (ADHOC-I), PALAKKAD ST.5095/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- SUNIL KUMAR, S/O.SUKUMARAN, KALATHI HOUSE, RAMASERRY POST, PALAKKAD. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. A.RADHAKRISHNAN, S/O.APPU MOOTHAN, AGED 42 YEARS, BUSINESS, TEMPLE STREET, KOPPAM, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISNNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2233 of 2009 -------------------------------------- Dated this the 10th day of July, 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. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is aggrieved by the judgment of learned Additional Sessions Judge, Adhoc Court No.I, Palakkad in Crl.Appeal No.337 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) entered by the learned Judicial First Class Magistrate-II, Palakkad in S.T.No.5095 of 2005. According to respondent No.1, petitioner borrowed Rs.75,000/- from him agreeing to repay the same with interest at the rate of 12% per annum and on his demanding repayment petitioner issued Ext.P1, cheque dated 22.8.2005. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Statutory notice served on petitioner was returned unclaimed, as proved by Ext.P4 series. Courts below found that petitioner issued the cheque for discharge of a legally enforceable debt/liability. That finding is under challenge. According to the petitioner he had borrowed Rs.5,000/- from respondent No.1 and given a signed blank cheque as security. That cheque was misused. There is no evidence or circumstance proving or Crl.R.P.No.2233/2009 2 probabilising that contention. Respondent denied that transaction was only in respect of Rs.5,000/-. That, the registered notice issued on behalf of respondent No.1 was returned unclaimed shows that petitioner was aware of the nature of claim being made by respondent No.1. Nothing is brought out to disbelieve the evidence of respondent No.1. Hence courts below have found in favour of due execution of the cheque. There is no reason to interfere with that finding. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There was a direction for payment of compensation of Rs.75,000/- with default sentence of imprisonment for three months. Appellate court retained the direction for payment of compensation and default sentence while granting one month’s time to the petitioner to pay compensation. Substantive sentence was modified as simple imprisonment till rising of the court. Having regard to the nature of offence and amount involved there is no reason to interfere with the sentence as modified by the appellate court or the direction for payment of compensation and default sentence. 4. Learned counsel requested that petitioner may be granted four months’ time to deposit compensation. Counsel states that petitioner is in financially difficult situation. Considering the submission of learned counsel I am inclined to grant four months’ time to the petitioner to deposit compensation. Crl.R.P.No.2233/2009 3 Resultantly revision fails. It is dismissed. Petitioner is granted four months’ time from today to deposit compensation in the trial court. It is made clear that it will be sufficient compliance of the direction for deposit 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 said period of four months. Petitioner shall appear in the trial court on 12.11.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 12.11.2009. THOMAS P.JOSEPH, Judge. cks