IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2352 of 2009() ------------------------------ CRA.244/2006 of ADDL.SESSIONS COURT, FAST TRACK COURT (ADHOC)-IV, TRIVANDRUM CC.348/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V(SPECIAL COURT FOR MARKLIST CASES), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------- V.VELUKUTTY,RATHEESH BHAVAN,ARAYOOR.PO, AMARAVILA,KOLLAYIL VILLAGE. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,SESSIONS COURT,ERNAKULAM. 2. THRIVIKRAMAN NAIR,THIRUVONAM,T.C.3/1850, JYOTHIS NAGAR,PATTOM PALACE.PO,THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2352 of 2009 -------------------------------------- Dated this the 23rd day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. Respondent No.2 filed a complaint in the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case is that petitioner borrowed Rs.35,000/- from respondent No.2 and for repayment of that amount issued Ext.P1, cheque dated 15.11.2001. Dishonour of that cheque as account is closed is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and testified to his case. Petitioner claimed that he had borrowed Rs.8,000/- from one Sreekantan Nair on 7.6.1998 and given Ext.P1 in signed blank form as security. He paid interest to the said Sreekantan Nair till 26.10.1998. When he demanded return of the cheque, latter claimed that it is misplaced. That cheque has been misused. Petitioner gave evidence as DW1 and proved Exts.D1 and D2. Courts below were not impressed by the evidence of DW1 and found him guilty. That finding is under challenge. 3. It is not disputed that Ext.P1 is signed by the petitioner and drawn Crl.R.P.No.2352/2009 2 on the account maintained by him. Ext.D1, the ledger extract or Ext.D2, withdrawal form did not in any way improve the case of petitioner. As to the circumstances in which the signed blank cheque happened to be in the custody of respondent No.2 what is available is only version of petitioner as DW1. He did not examine Shri Sreekantan Nair to whom he is said to have given Ext.P1. It is seen that after closure of evidence petitioner wanted to reopen the case to examine the said Sreekantan Nair as a witness. That petition was allowed on cost of Rs.500/-. Petitioner did not comply with the direction for payment of cost and hence the petition was dismissed. As such, what is available is only the version of petitioner as DW1. Inspite of service of notice he did not reply. These circumstances are taken into consideration by the courts below to hold in favour of due execution of the cheque. I do not find reason to interfere with that finding. Petitioner failed to rebut the presumption under Section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.35,000/- to respondent No.2. A default sentence of imprisonment for one month was provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Direction for payment of compensation was set aside. Instead petitioner was directed to pay fine of Rs.35,000/- with a default sentence of imprisonment for one month. Cheque is Crl.R.P.No.2352/2009 3 of the year 2001 and the offence was committed much before amendment of Section 143 of the Act. Hence sentence of fine could not exceed Rs.5,000/-. To that extent an illegality has been committed by learned Additional Sessions Judge. However revisional court can also award compensation in view of Section 357(4) of the Code. Hence sentence of fine can be converted as compensation payable to respondent No.2. 5. Learned counsel requested that petitioner may be granted three months’ time to deposit compensation in the trial court as he is in a financially difficult situation. Considering the circumstances stated by learned counsel I am inclined to allow the request. Petitioner is granted three months’ time from today to deposit compensation. In default of payment petitioner has to undergo simple imprisonment for two months. Resultantly, this revision petition is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.35,000/- (Rupees thirtyfive thousand only) as compensation within three months from this day failing which petitioner shall undergo simple imprisonment for two months. ii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the compensation to Crl.R.P.No.2352/2009 4 respondent No.2 through his counsel in the trial court and respondent No.2 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 26.10.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 26.10.2009. THOMAS P.JOSEPH, Judge. cks