IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.Rev.Pet.No. 2303 of 2009 ------------------------------ CRA.104/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.189/2006 of JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD .................... CRL REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------- SAHADEVAN,S/O.NANU,CHANDRA BHAVANANAM, KAPPILMEKKU,KRISHNAPURAM VILLAGE,KARTHIKAPPALLY TALUK,ALAPPUZHA. BY ADV. SRI.S.MOHANAN RESPONDENTS/COMPLAINANT & STATE: ---------------------------------- 1. RAJEEVAN PILLAI,S/O.LAKSHMANAN PILLAI, SRUTHY,KANDALLOOR VADACKUM MURI,KANDALLOR VILLAGE, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2303 of 2009 --------------------------------------- Dated this 16th day of July 2009 ORDER Notice of 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 took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-II, Mavelikkara in Criminal Appeal No.104 of 2007 confirming conviction and sentence of petitioner for offence punishable under Sec.138 of the Negotiable Instruments Act. Case arose on a complaint preferred by respondent No.1. He alleged that petitioner borrowed Rs.150000/- from him on 20-08-05 and for repayment of that amount issued Ext.P1, cheque dated 22-12-05. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 to P4. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on petitioner. Since acknowledgment card was not returned, respondent No.2 obtained a certificate from the postal authorities certifying delivery of registered notice on petitioner. Issue and service of statutory notice is proved by Exts.P5 to P7. When questioned under section 313 of the Code of Criminal Procedure petitioner stated that he was working in a contract company and that a mason of that company Crl.R.P.No.2303 of 2009 2 collected a signed blank cheque from him and handed over to respondent No.2. He had no transaction with respondent No.2 nor issued the cheque to him. Petitioner examined DW1. DW1 is a co- worker of petitioner in that company. According to DW1, he had borrowed Rs.50000/- from respondent No.1 and when respondent No.1 demanded a cheque as security for that amount, he collected the signed blank cheque from petitioner and gave the same to respondent No.1. Courts below found that the explanation of petitioner is not acceptable. It is contended by learned counsel that evidence of DW1 was not properly considered by the courts below. It is also contended by learned counsel that the appeal was disposed without hearing the counsel or petitioner. 3. Assuming that petitioner or counsel were not available before the appellate court, appellate court had to consider the evidence and dispose of the appeal on merit. Disposal of the appeal in this case is on merit. Hence it is idle to contend that the appeal was disposed of without hearing counsel for petitioner and hence it has to go back to the appellate court. 4. So far as execution of the cheque is concerned, I have referred to the respective contentions. It came out in the evidence of respondent No.1 that a civil suit is filed against mother of DW1. Going by the evidence of DW1, his mother had no role in the matter of Crl.R.P.No.2303 of 2009 3 execution of the cheque in question. It is seen from Ext.P7 and it is not disputed also, that statutory notice was served on petitioner. Inspite of that, he did not reply to respondent No.2. DW1 is a friend and co- worker of petitioner. His evidence was not accepted by the courts below in the circumstance stated above. I do not find reason to interfere with the finding of the courts below regarding execution of the cheque as it is not shown to be vitiated by any illegality, irregularity or impropriety. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay Rs.150000/- as compensation to respondent No.1 and in default of payment to undergo simple imprisonment for six months. It is contended by learned counsel that sentence imposed is excessive. He requested six months' time to deposit compensation since petitioner is unable to raise the amount immediately. 6. Considering the nature of offence and the amount involved 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 for payment of compensation or default sentence. Considering the difficulties of petitioner expressed by learned counsel petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision is allowed in part to the following extent: Crl.R.P.No.2303 of 2009 4 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 30-12-2009 to deposit compensation as ordered by the appellate court and in default of payment he shall undergo simple imprisonment as ordered by that court. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 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/