IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.Rev.Pet.No. 2191 of 2009() ------------------------------ CRA.1161/2006 of II ADDL. SESSIONS COURT, TRIVANDRUM CC NO.508/2005 OF JUDICIAL FIRST CLASS MAGISTRATE-V, NEYYATTINKARA (OLD ST.1479/2005 of JUDICIAL FIRST CLASS MAGISTRATE-II) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.CHANDRA BABU,S/O.CHELLAPPAN,OVERSEAR, PWD,ASWATHY NIVAS, KEERIKUZHY,KARYAVATTOM, CHEMPAZHANTHY.P.O,THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. SOBHANALAL,S/O.JAMES,MAVADICHIVILAKOM VEEDU,THIRUPURAM DESOM,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2191 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 pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-II, Thiruvananthapuram in Crl.Appeal No.1161 of 2006 confirming conviction but modifying sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs.1.50,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 12.4.2005. That cheque on presentation was dishonoured for insufficiency of funds. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Dishonour of the cheque for insufficiency of funds and service of statutory notice on petitioner are not disputed and are proved by Exts.2 to P5. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, he had borrowed Rs.50,000/- from respondent No.1 on three occasions and paid Rs.2,500/- to respondent No.1 by way of interest till January, 2005. On the respective dates of borrowel respondent No.1 had Crl.R.P.No.2191/2009 2 obtained three signed blank cheques from him one which is misused. Petitioner examined DWs 1 to 3 to support his contention. Courts below did not accept the contention of petitioner and found him guilty. That finding is under challenge in this revision. Learned counsel contends that evidence of DW3 was discarded by the courts below on account of a mistake in the date of transaction he deposed. It is also contended by learned counsel that version of respondent No.1 cannot be believed. 3. It has come out in evidence that petitioner and respondent No.1 are close relatives. Respondent No.1 stated that petitioner came to his house along with one Sathyaraj and borrowed the amount. Obviously to disprove that case of respondent No.1 petitioner examined the said Sathyaraj as DW2. He stated that he had been to the house of respondent No.1 along with the petitioner and petitioner borrowed Rs.1,50,000/- from respondent No.1. DW1 is the mother of brother-in-law of respondent No.1. Though she was cited as a witness by the petitioner to disprove the case regarding the source of money she asserted that she had given Rs.1,50,000/- to respondent No.1. Thus the evidence of DW1 corroborated the version of respondent No.1. Who remained is DW3 who supported the petitioner. He claimed that he had been to the house of respondent No.1 along with the petitioner on all the three occasions petitioner borrowed money from respondent No.1. DW3 stated that he accompanied the petitioner to the residence of respondent No.1 on 5.9.2001, 5.10.2001 and 5.11.2001. Learned magistrate has observed that as against that version of Crl.R.P.No.2191/2009 3 DW3, what was suggested to respondent No.1 when the latter was in the box is that petitioner borrowed Rs.15,000/- from him on 9.9.2001, another Rs.15,000/- on 7.10.2001 and then Rs.20,000/- on 4.11.2001. Learned magistrate observed that the dates suggested to respondent No.1 did not tally with the dates stated by DW3. Going through the evidence of DW3 it would appear that he mentioned the dates as 5.9.2001, 5.10.2001 and 5.11.2001 only for the purpose of easy remembrance at the time of giving evidence. Mere fact that DW3 has supported the petitioner is not sufficient to discredit the evidence of respondent No.1 if it is otherwise acceptable. Inspite of being served with statutory notice claiming Rs.1,50,000/- petitioner has not replied. Courts below have considered the evidence and found in favour of due execution of the cheque. As that finding is not vitiated by illegality, irregularity or impropriety I do not find reason to interfere. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for nine months and directed him to pay Rs.1,55,000/- as compensation to respondent No.1. There was also a default sentence of simple imprisonment for four months. Appellate court modified the substantive sentence as simple imprisonment till rising of the court but fixed the compensation payable at Rs.1,60,000/- while maintaining the default sentence. Petitioner was granted time till 15.7.2009 to deposit compensation. Learned counsel has a grievance that appellate court was not justified in enhancing the compensation. I do not find any illegality in the appellate court fixing the Crl.R.P.No.2191/2009 4 compensation as Rs.1,60,000/- since what is not permissible in appeal from conviction and sentence is alteration of sentence so as to enhance it but compensation does not form part of the sentence. Section 357(4) of the Code of Criminal Procedure empowers the appellate or revisional court to award compensation. Necessarily that includes the power to re-fix compensation considering the extent of loss suffered by the victim. I do not find reason to interfere with the sentence as modified or, the amount of compensation fixed and the default sentence provided by the appellate court. 5. Learned counsel submits that petitioner is in financially difficult situation, unable to raise money immediately and requested six months’ to deposit compensation. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant time till 30.12.2009 to deposit compensation as awarded by the appellate court failing which petitioner has to undergo default sentence as imposed by the appellate court. Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court as ordered by the appellate court. It is made clear that it will be sufficient compliance of the 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 his counsel acknowledging receipt of compensation within the above said time. Petitioner Crl.R.P.No.2191/2009 5 shall appear in the trial court on 31.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31.12. 2009. THOMAS P.JOSEPH, Judge. cks