IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1948 of 2009() ------------------------------ CRA.118/2001 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOLLAM CC.855/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- R.RAJESH KUMAR, MOVUKONATHU VEEDU, MANNANTHALA, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- 1. P.V.JACOB, S/O.P.C.VARGHESE, KAILATHU HOUSE, MAKKULAM, PATHANAPURAM P.O., KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1948 of 2009 -------------------------------------- Dated this the 22nd 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 which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Punalur in C.C.No.855 of 1999 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a private complaint preferred by respondent No.1. Case is that petitioner owed Rs.21,200/- to him and for discharge of that debt issued Ext.P1, cheque dated 2.4.1997 which was dishonoured for insufficiency of funds as proved by xts.P2, P3, P7 and P8. On getting dishonour intimation respondent No.1 issued statutory notice to the petitioner. Issue and service of statutory notice on petitioner are proved by Exts.P4 and P5. Ext.P6 is the reply sent by petitioner. Respondent No.1 gave evidence as PW1 and testified to the transaction. According to the petitioner he had no transaction with respondent No.1 nor had he issued any cheque. In Ext.P6, reply petitioner claimed that on 24.6.1997 he availed loan of Rs.21,200/- from M/s.Kaliath Finance and as security issued a demand promissory note and blank cheque to its proprietor, Shri P.V.Cherian. He repaid that amount but the demand promissory note and signed blank Crl.R.P.No.1948/2009 2 cheque were not returned to him. Later he learnt that the cheque was obtained in the name of Shri P.V.Jacob, respondent No.1 who is also a partner of M/s.Kaliath Finance. Courts below did not accept the contention of petitioner. 3. So far transaction and execution of the cheque are concerned, there is evidence of respondent No.1. It is true that being an accused in a criminal case petitioner is entitled to take inconsistent pleas. Though petitioner stated in Ext.P6, reply that cheque was given to Shri P.V.Cherian, he stated in Ext.P6 itself that later he learnt that the cheque was issued in the name of respondent No.1. That is the stand petitioner has taken in his statement under Section 313 of the Code as well. Only person who is entitled to initiate legal proceedings based on a dishonoured cheque is either the payee or holder in due course. In this case evidence shows that respondent No.1 is the payee and hence he alone can initiate proceedings. It is not shown that evidence of respondent No.1 suffers from any inherent weakness. Petitioner was not able to prove or probabilise the contention he raised. Courts below assessed the evidence and found in favour of due execution of the cheque. There is little reason to interfere with that finding. Petitioner failed to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for four months. Appellate court did not interfere with the sentence. Learned counsel requested that sentence may be modified and that one month's time to deposit the compensation in the trial court in case this Court Crl.R.P.No.1948/2009 3 directed payment of compensation. 5. Having regard to the nature of the offence and the amount involved I am inclined to think that sentence awarded is excessive. Simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time respondent No.1 who suffered loss at the hands of petitioner has to be compensated. Amount covered by the cheque is Rs.21,200/-. That was in respect of a transaction of the year 1997. Section 357(4) of the Code empowers the revisional court also to award compensation. On the facts and circumstances of the case compensation payable by petitioner is fixed as Rs.25,000/-. Petitioner is granted one month's time from today to deposit the compensation in the trial court failing which he shall undergo simple imprisonment for two months. Resultantly, this revision is allowed in part to the following extent: i. Sentence imposed on petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.25,000/- ( Rupees Twentyfive thousand only) as compensation under Section 357(3) of the Code within one month from this day failing which, he shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance of the direction for payment 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 Crl.R.P.No.1948/2009 4 compensation within the said period of one month. iv. Petitioner shall appear in the trial court on 29.7.2009 to receive the sentence. Crl.M.A.No.5935 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks