IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 2028 of 2009() ------------------------------ CRA.344/2006 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK-I, TRIVANDRUM ST.5448/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED -------------------------------------------------- SHAJI S., AGED 28 YEARS, S/O.SHEIKH ABDUL RAHIM, ARAPPURA VEEDU, PLAVODE, KODUNGANOOR P.O., THIRUVANANTHAPURAM BY ADV. SRI.B.HARISH KUMAR SRI.Y.BOBBY JOSEPH RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD.,FORT P.O. THIRUVANANTHAPURAM HAVING AT BRANCH AT NANTHANCODE,THIRUVANANTHAPURAM-REP.BY ITS AUTHORIZED OFFICER, SMT.USHA KUMARI,EMPLOYED AS EXECUTIVE OFFICER,THIRUVANANTHAPURAM DIST. CO-OP.BANK LTD.,THIRUVANANTHAPURAM. 2. STAE 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 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2028 of 2009 -------------------------------------- Dated this the 24th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court learned Judicial Magistrate of First Class-IV (Mobile), Thiruvananthapuram in S.T.No.5448 of 2005 on a complaint preferred by respondent No.1 which is a banking institution registered under the Kerala Co-operative Societies Act. Case is that petitioner availed a loan of Rs.20,000/- from respondent No.1 and for discharge of liability and repayment of the debt he issued cheque dated 29.3.2005 for Rs.12,721/-. That cheque was dishonoured for insufficiency of funds on 10.5.2005. Respondent No.1 issued notice to the petitioner on 8.6.2005 intimating dishonour and demanding payment of amount. That notice was served on petitioner on 15.6.2005 but he did not pay the amount. Manager of respondent No.1 gave evidence as PW1. Ext.P1 is the letter of authorization in her favour. She stated that petitioner availed loan of Rs.20,000/- from respondent No.1 and issued Ext.P2, cheque for discharge of debt/liability. Dishonour of cheque for insufficiency of funds is proved by Exts.P3, P7 and P8. Issue and service of notice on the petitioner are proved by Exts.P4 to P6. Findings of courts below Crl.R.P.No.2028/2009 2 regarding dishonour of cheque and issue and service of notice are not challenged in this revision. 3. It is contended that due execution of cheque is not proved. According to the petitioner, cheque was taken as security at the time he applied for and availed the loan. He denied that Rs.12,721/- is due to respondent No.1. Petitioner did not adduce evidence in support of his contention. He did not reply to notice. If petitioner had a genuine contention that he has repaid the amount, he would have produced relevant documents or summoned necessary documents from respondent No.1 to prove such payment. He did neither. It was merely suggested to PW1 that no amount was due and that the cheque given at the time of loan transaction was misused. There is no reason to think that a banking institution registered under the Kerala Co-operative Socieites Act would fraudulently fill up the cheque given by petitioner and present it for encashment. It is not disputed that petitioner had availed loan from respondent No.1. Case of respondent No.1 is proved through the evidence of PW1. Failure of petitioner to reply to the notice served on him strengthened the case of respondent No.1. Nothing was brought out to disbelieve the evidence of PW1. In these circumstances I do not find reason to interfere with the concurrent finding of the courts below as to the due execution of cheque. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. He was directed to pay Rs.12,721/- as compensation under Section 357(3) of the Code of Criminal Procedure (for short, “the Code”) with cost of Rs.1,000/- under Section 359 of that Code. There Crl.R.P.No.2028/2009 3 is also a default sentence provided by learned magistrate. Appellate court did not interfere with the sentence as well. Prayer in this revision is to show leniency to the petitioner in the matter of sentence. Petitioner is willing to pay compensation and cost in the trial court within one month. 5. Having regard to the nature of the offence and amount involved I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. Petitioner can be granted one month’s time to deposit compensation and cost as ordered by the trial court. In case of non-payment of compensation , petitioner has to undergo simple imprisonment for two months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded by learned magistrate is modified as simple imprisonment till rising of court. ii. Petitioner is granted one month’s time to deposit in the trial court compensation of Rs.12,721/- (Rupees Twelve thousand seven hundred and twentyone only) and cost of Rs.1,000/- (Rupees one thousand only) as ordered by the trial court. In case of default, petitioner shall undergo simple imprisonment for two months for non-payment of compensation and simple imprisonment for ten days for non-payment of cost. iii. It is made clear that it will be sufficient compliance of direction for payment of compensation if petitioner paid the amount of compensation and cost to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel Crl.R.P.No.2028/2009 4 acknowledging receipt of compensation and cost within the said period of one month. iv. Petitioner shall appear in the trial court on 27.7.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 27.7.2009. Crl.M.A.No.6091 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks