IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2423 of 2009() ------------------------------ CRA.186/2003 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CC.137/2002 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), KANNUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --- --------------------- JOY O.A,AGED 41,S/O.JOSEPH, TEACHER,P.O PAYYANNUR,KANNUR DISTRICT. BY ADV. SRI.BEPIN VIJAYAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------------------- 1. K.J.THOMAS,AGED 42,S/O.JOSEPH, KOCHUKUDIYAT,CHERUPUZHA,VAYAKKARA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2423 of 2009 --------------------------------------- Dated this 29th 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. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-III, Kannur in C.C.No.137 of 2002 for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.1,59,950/- and for repayment of that amount issued three cheques, Exts.P1 to P3 dated 30-09-2000 and 10-11-2000 for Rs.50000/- each and dated 20- 12-2000 for Rs.59950/-. Those cheques were dishonoured for insufficiency of funds as proved by Exts.P4 to P6. Issue and service of statutory notice on petitioner are proved by Exts.P7 to P9. Petitioner did send a reply, Ext.P10 but after the complaint was filed, contending that the liability of respondent No.1 was discharged. When questioned under section 313 of the Code of Criminal Procedure (for short, “the Code”) petitioner contended that respondent No.1 had joined a kuri run by petitioner and for the amount payable to respondent No,1, he issued three signed blank cheques. He settled the dispute with respondent No.1 on 10-03-2001 and paid the amount due on 13-03- Crl.R.P.No.2423 of 2009 2 2001. When he requested to return the signed blank cheques, the latter demanded payment of Rs.95000/- to his brother-in-law, Augustine Kalathil. Petitioner contended that those singed blank cheque leafs were misused. Petitioner gave evidence as PW1. Exts.D1 and D2 are vouchers allegedly issued by respondent No.1. It is contended by learned counsel that due execution of the cheques is not proved. Courts below were not correct in discarding Exts.D1 and D2. 3. Learned magistrate has observed that though going by Exts.D1 and D2 those documents were in existence at the time Ext.P10, reply was issued there is no reference in that reply to Exts.D1 and D2. It is not disputed that Ext.P10, reply was sent after respondent No.1 filed the complaint. It is in these circumstances that courts below did not accept Exts.D1 and D2 in support of contention of petitioner. If respondent No.1 had failed or refused to return the cheques but claimed further amount, petitioner would have intimated that matter to the bank and taken steps to get back the signed blank cheques. Even Ext.P10, reply is sent only after filing the complaint. It is not disputed that petitioner had handed over the cheques to respondent No.1. Courts below found that there is no reason to disbelieve the evidence of respondent No.1. There is no reason why this court in revision should interfere with the finding entered by the courts below on an appreciation of the evidence. Crl.R.P.No.2423 of 2009 3 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year. There is also a direction for payment of compensation of Rs.2,00,000/- and default sentence of imprisonment for three months. It is submitted by learned counsel that sentence imposed is excessive. Petitioner requests six months time to deposit compensation since according to him, he is in a difficult financial situation. Considering the nature of the offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction of payment of compensation. Since the substantive sentence is modified, petitioner has to undergo simple imprisonment for six months in case compensation is not paid. Petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Petitioner is granted time till 30-12-2009 to deposit compensation as ordered by learned magistrate. In case of failure petitioner has to undergo simple imprisonment for six months 2. 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 Crl.R.P.No.2423 of 2009 4 respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. Petitioner 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 Sbna/