IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 1609 of 2009() ------------------------------ CRA.15/2008 of ADDL.SESSIONS COURT, KOTTAYAM ST.2413/2007 of JUDL. MAGISTRATE OF FIRST CLASS-I, CHANGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.N.SURENDRAN, PLAMOOTTIL HOUSE, CHENNANIKAD P.O., KOTTAYAM. BY ADV. SRI.C.K.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. C.N.SHAJI,S/O.NARAYANA PILLAI, SHEELA BHAVAN,CHENNANIKAD P.O., KOTTAYAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1609 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make. 2. Judgment of learned Additional Sessions Judge, Kottayam in Crl.Appeal No.15 of 2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the substantive sentence of imprisonment and the compensation awarded by the trial court as fine is under challenge. 3. Case of respondent No.1 is that petitioner owed Rs.65,000/- to him and to discharge the liability, petitioner issued Ext.P1, cheque dated 27.1.2004. He claimed that the cheque on presentation was dishonoured for insufficiency of funds. This fact is not disputed and is proved by Exts.P2 and P3. On getting information about dishonour respondent No.1 issued notice to the petitioner on 6.5.2004 which was served on him on 12.5.2004. Issue and service notice are proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to his case. petitioner gave evidence as DW1. He examined DW2 also to prove his case. According to the petitioner, respondent No.1 is a stranger to him and he had no transaction with respondent No.1. He along with his relative, Manoj had borrowed a total sum of Rs.25,000/- on three occasions Crl.R.P.No.1609/2009 2 from one Prakash and at that time himself and Manoj had given signed blank cheques as security. Making use of one of the signed blank cheques issued by Manoj, Prakash filed a complaint against Manoj for offence punishable under Section 138 of the Act. That case was settled. Prakash colluded with respondent No.1 and caused the present complaint to be filed. DW2, Harish claimed that his father and petitioner are working in the LIC. Prakash is his neighbour. Petitioner wanted a loan from DW2. He introduced the petitioner to Prakash. Prakash advanced the amount to the petitioner in his presence. Petitioner gave signed blank cheque to Prakash. In cross-examination he stated that he had no information about any transaction between petitioner and PW1. Courts below found that petitioner executed Ext.P1, cheque in favour of respondent No.1 and that petitioner failed to rebut presumption under Section 139 of the Act. Learned counsel contends that the finding entered by the courts below is not correct. 4. According to respondent No1, petitioner is his neighbour. Petitioner when examined as DW1 stated that he is staying at Koothattukulam and has no previous acquaintance with respondent No. but it came out in his evidence that his wife's house is at Channanikkad where he had been staying since the last three years. Learned magistrate found from the address that petitioner and respondent No.1 are residing at same place and therefore, the contention that petitioner is a stranger to respondent No.1 cannot be accepted. 5. There is no acceptable evidence to show that Ext.P1 is a cheque which the petitioner had handed over to Prakash. The documents relating to the Crl.R.P.No.1609/2009 3 case registered by Prakash against Manoj are not produced. Petitioner should have got back the signed blank cheque he had allegedly given to Prakash. So far as evidence of DW2 is concerned, it has come in evidence that his father and petitioner are working in same place. At any rate, he has no information about any transaction between petitioner and respondent No.1. A further fact that is to be noted is that inspite of service of notice of dishonour and demand for payment of the amount, petitioner did not respond by a reply notice. In these circumstances, courts below are justified in holding in favour of due execution of the cheque. Petitioner has not succeeded in rebutting the presumption under Section 139 of the Act. 6. Learned counsel pleaded that sentence imposed is excessive. Apart from awarding compensation, trial court sentenced the petitioner to undergo simple imprisonment for three months. Appellate court modified the substantive sentence to simple imprisonment till rising of the court but converted compensation awarded by the trial court to fine and directed that the entire amount if realised will be given to respondent No.1. In the facts and circumstances of the case I am inclined to think that the fine awarded by the appellate court can be converted as compensation payable under Section 357(3) of the Code of Criminal Procedure. At this stage counsel for petitioner requested for four months’ time to deposit the compensation. Considering the fact that the case is pending for a long time and cheque was issued on 27.1.2004 I am not inclined to grant four months but, considering the amount involved two months' time is granted to deposit the compensation. Crl.R.P.No.1609/2009 4 Resultantly, this revision is allowed in part in the following lines: i. Sentence of fine is converted as compensation. Petitioner is directed to deposit Rs.65,000/- (Rupees Sixtyfive thousand only) as compensation payable to respondent No.1, in the trial court within two months' from this day failing which, he shall undergo imprisonment as ordered by the trial court. ii. It is made clear that it will be sufficient compliance with direction No.i 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 the receipt of the compensation within the aforesaid time. iii. Petitioner shall surrender in the trial court on 28.7.2009 to receive the sentence. Crl.M.A.No.4876 of 2009 of 2009 will stand dismissed THOMAS P.JOSEPH, Judge. cks