IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRL.REV.PET.NO. 2407 OF 2009() ------------------------------------------- CRA.59/2004 OF II ADDL. SESSIONS COURT, PALAKKAD ST.2693/1999 OF JUDL.MAGISTRATE OF FIRST CLASS COURT- I,OTTAPPALAM .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ---------------------------------------------------------------- UNNENKUTTY, AGED 64 YEARS, S/O.MOHAMMED, THELATH HOUSE, NEDUNGATTUR P.O., PALAKKAD DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.VIPIN NARAYAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------- 1. VASUDEVAN, AGED 45 YEARS, S/O.UNNEERI, VALATHIL VEEDU, PANAYUR DESOM, KOONATHARA AMSOM, OTTAPALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK SRI.SANTHEEP ANKARATH FOR R1 SMT.N.N.PRASEEDA FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2407 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of July, 2009 O R D E R -------------- Heard both sides. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Palakkad in Crl. Appeal No.59 of 2004 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1 there was an agreement for purchase of property belonging to petitioner for a total sum of Rs.1,50,000/- and as advance respondent No.1 paid Rs.60,000/- to the petitioner. That transaction did not go through. In the mediation petitioner agreed to return the sum of Rs.60,000/- taken by him as advance and for repayment of that amount issued Ext.P2, cheque dated 13.9.1999. Dishonour of that cheque for insufficiency of funds is proved by Exts.P3, P4, P7 and P8. Issue and service of notice on petitioner are proved by Ext.P5 series. According to the petitioner he had borrowed Rs.30,000/- from respondent No.1 and given signed blank cheque as security. Respondent No.1 gave evidence as P.W.1 regarding the transaction and alleged execution of the cheque. Exhibit P1 is the agreement stated to be executed between respondent No.1 and CRL. R.P. No.2407 of 2009 -: 2 :- petitioner. D.W.1 who was examined by petitioner stated that it was a loan transaction and that he had introduced petitioner to respondent No.1 who is a money lender. On petitioner borrowing money from respondent No.1, former issued two signed blank cheques. Courts below did not accept his evidence and found in favour of due execution of the cheque. It is contended by learned counsel that due execution of the cheque is not proved. 3. It is true that to the statutory notice petitioner sent Ext.P6, reply and examined D.W.1. Exhibits D1 and D2 are the certified copy of chief affidavit and deposition of respondent No.1 in O.S. No.227 of 1999 filed by the latter for realisation of the amount. Courts below observed that Exts.D1 and D2 in no way advance the case of petitioner since what is stated therein is only regarding mediation following which petitioner issued Ext.P2, cheque. So far as evidence of D.W.1 is concerned, in cross-examination he stated that in one of the two cheques petitioner had allegedly given to respondent No.1 the amount of Rs.60,000/- was written. He also stated that Ext.P1 agreement was written in his presence. At least the signature in Ext.P1 is not disputed by petitioner. That, it was not a loan transaction as stated by D.W.1 and instead it was an agreement for CRL. R.P. No.2407 of 2009 -: 3 :- purchase of property belonging to the petitioner is proved by Ext.P1. Payment of Rs.60,000/- is also stated in Ext.P1. On going through the judgments under challenge and hearing counsel on both sides I find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three moths. Compensation was not awarded since respondent No.1 has already obtained a decree in the Civil Suit. Learned counsel requested that sentence may be modified. Learned counsel for respondent No.1 requested that in case sentence is modified petitioner may be directed to pay the compensation. It is also submitted that the decree in O.S. No.227 of 1999 is under challenge in the appellate court at the instance of petitioner and that he has obtained a stay of execution of the decree on executing a bond. It is conceded by counsel for petitioner also that pursuant to the decree no amount was paid to respondent No.1. In the circumstances there is no reason why payment of compensation should be avoided. If at all compensation as may be ordered in this case is paid by petitioner the appellate court while considering the appeal from decree in the civil case can take into consideration the amount paid and grant appropriate relief in view of Section 357(5) of CRL. R.P. No.2407 of 2009 -: 4 :- the Code of Criminal Procedure (for short, “the Code”). Considering the facts and the circumstances and amount involved, I am inclined to modify the sentence awarded to the petitioner as simple imprisonment till rising of the court but petitioner has to pay compensation to respondent No.1. This Court is competent to fix compensation in view of Sec.357(4) of the Code. Hence Rs.60,000/- is fixed as the compensation payable by the petitioner to respondent No.1 and in case of default, he shall undergo simple imprisonment for three months. Resultantly, this revision petition is allowed in part to the following extent: (i) Sentence awarded to the 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.60,000/- by way of compensation under Sec.357(3) of the Code on or before 30.12.2009 failing which petitioner shall undergo simple imprisonment for three months. CRL. R.P. No.2407 of 2009 -: 5 :- (iii) It is made clear that it shall be sufficient compliance with 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 compensation within the said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv