IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 747 of 2001() ----------------------------- CRA.142/1999 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.270/1997 of JUDL.MAGISTRATE OF FIRST CLASS CHENGANNUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- PRISE KUTTY, S/O.DANIEL, AGED 41, CHETTETHU HOUSE, MULAKKUZHA, CHENGANNUR. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. SUSAMMA ABRAHAM, W/O.ABRAHAM, CHAMAKALAYIL HOUSE, KEERIKKAD P.O., MULAKUZHA VILLAGE, CHENGANNUR. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.JOMY GEORGE FOR R1 BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.747 of 2001 -------------------------------------- Dated this the 29th day of September, 2008. ORDER Heard counsel on both sides. 2. Revision petitioner stands convicted for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'the Act'). Trial court sentenced him to undergo simple imprisonment for two months and pay fine of Rs.10,000/-. In appeal, learned Sessions Judge confirmed the conviction but allowed the appeal “only to the extent of modifying the sentence of fine as Rs.5,000/- (Rupees five thousand) and in default of payment of the fine to undergo Simple Imprisonment for a period of one month and also by awarding an amount of Rs.25,000/- (Rupees twenty five thousand) only as compensation”. Revision petitioner is still aggrieved and preferred this revision. 3. It is contended on behalf of revision petitioner that conviction is unsustainable. Learned counsel also submitted that sentence is excessive. Crl.R.P.No.747/2001 2 4. First respondent gave evidence as PW1 and stated that revision petitioner issued Ext.P1, cheque for discharge of debt to the tune of Rs.57,000/-. Case pleaded by revision petitioner is that he had given the cheque to the husband of first respondent. Revision petitioner examined DW1 who claimed that he is aware of the transaction between revision petitioner and husband of first respondent. In answer to leading questions in chief examination, DW1 stated that revision petitioner handed over signed blank cheque to the husband of first respondent. In cross-examination he stated that he came to court at the request of revision petitioner. He denied the suggestion that revision petitioner is closely related to him. He however, was not able to say anything in detail about the signed blank cheque said to be given by revision petitioner to the husband of first respondent. Courts below were not inclined to accept or act upon the testimony of DW1. I find that crucial answers were elicited from DW1 by leading questions even in chief examination which is not permissible. Revision petitioner was served with notice of demand as seen from Ext.P6 but no reply was given. On going through the evidence, I find no reason to disturb the concurrent finding entered by the courts below that revision petitioner issued the cheque in question for discharge of the debt. Conviction therefore, is unassailable. 5. Coming to the sentence part of the judgment, it is seen that appellate court modified the sentence of fine from Rs.10,000/- to Rs.5,000/- and at the same time directed payment of compensation. When the Crl.R.P.No.747/2001 3 sentence is one of fine only, compensation cannot be ordered in view of Section 357(3) of Code of Criminal Procedure. A direction for payment of compensation has to follow sentence of imprisonment. On going by the judgment of appellate court it would appear that modification of sentence was only to the extent of find and compensation which means that substantive sentence was retained. Counsel for revision petitioner submitted that revision petitioner is prepared to pay the cheque amount, given three months' time. 6. Considering the nature of offence and other relevant facts I am inclined to think that simple imprisonment till rising of court and compensation of Rs.57,000/- is sufficient to meet the ends of justice. Revision Petition is allowed in part in the following lines:- (1) Revision petitioner is sentenced to undergo simple imprisonment till the rising of court. (2) Revision petitioner is directed to deposit in the trial court for payment to first respondent as compensation Rs.57,000/- (Rupees Fiftyseven thousand only) within three months from this day failing which, he shall undergo simple imprisonment for two months. Crl.R.P.No.747/2001 4 (3) Amount if any deposited by revision petitioner in the trial court will be adjusted in the compensation fixed hereby. Revision petitioner shall surrender in the trial court on 31.12.2008 to receive sentence. Bail bond is cancelled. Crl.M.P.No.3506 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.747/2001 5 Thomas P.Joseph, J. Crl.R.P.No.747 of 2001 ORDER 29th September, 2008.