IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 2328 of 2009() ------------------------------ CRA.551/2008 of ADDL. SESSIONS COURT, KOTTAYAM ST.426/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- JOSEPH @ APPACHAN, ARUTHANADATHIL VEEDU, PATTITHANAM, KOTTAYAM DISTRICT. BY ADV. SRI.V.J.JAMES RESPONDENT(S): /RESPONDENTS/COMPLAINANTS: ---------------------------- 1. A.V.PRASAD, S/O.VISWAMBHARAN, AVANAKUZHIYIL VEEDU, KOZHA P.O., KOTTAYAM DISTRICT. (DECEASED). 2. MRS.BEENA PRASAD, W/O.PRASAD, AVANAKUZHIYIL VEEDU, KOZHA P.O., KOTTAYAM DISTRICT. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2328 of 2009 -------------------------------------- Dated this the 22nd day of July, 2009. ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.3. 2. This revision is in challenge of concurrent finding entered by the courts below as to the due execution of a cheque for discharge of a legally enforceable debt/liability. On a complaint preferred by the original complainant (he died pending trial) petitioner faced trial in the court of learned Judicial First Class Magistrate, Pala in S.T.No.426 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to the original complainant, petitioner owed Rs.20,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 22.3.2003. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Issue and service of of statutory notice on petitioner are proved by Exts.P4 to P6. After death of original complainant his wife (respondent No.2) got impleaded and gave evidence as PW1. She claimed that she witnessed the transaction. Petitioner borrowed Rs.20,000/- from her husband and issued the cheque in question. According to the petitioner, himself and original complainant had joint business in real estate and in connection with that, he had entrusted a signed blank cheque Crl.R.P.No.2328/2009 2 to the original complainant in the year, 1997. In the year 2003, original complaint entrusted Rs.10,000/- with him for business. Before the death of original complainant there was a settlement and petitioner paid the sum of Rs.10,000/- to the original complainant on 20.5.2004 (Ext.P7 shows that original complainant died on 1.7.2004). Petitioner gave evidence as DW1 in that line. Petitioner examined DW2 who also deposed as stated by the petitioner. Considering the evidence courts below found the petitioner guilty. It is contended that finding is not correct. 3. It is pertinent to note that petitioner had not replied to the statutory notice served on him. In other words, petitioner did not come up with a case of settlement of the dispute and payment of Rs.10,000/- to the original complainant at any time when he was alive. It is only after the death of original complainant on 1.7.2004 and when the wife of original complainant went into the box to give evidence as PW1 that petitioner came up with a case of settlement and payment of Rs.10,000/- to the original complainant. No document is produced to prove the settlement or payment of Rs.10,000/- to the original complainant. Mere fact that petitioner has given evidence as DW1 or has examined DW2 is not sufficient to rebut the presumption under Section 139 of the Act. Respondent No.2, wife of original complainant has given evidence regarding the transaction. Courts below found that there is no reason to disbelieve her evidence. It is not disputed that Ext.P1 contained signature of petitioner and that the same is drawn on the account maintained by him. Courts below were not inclined to accept the contention of the petitioner regarding the circumstance Crl.R.P.No.2328/2009 3 under which the signed blank cheque leaf happened to be in the custody of the original complainant. Finding of the courts below rested on a proper appreciation of evidence on record. As no illegality, irregularity or impropriety is shown with respect to that finding, no interference in revision is called for. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months and to pay fine of Rs.25,000/-. A default sentence of imprisonment for fifteen days was also provided. Appellate court did not interfere with the sentence. Learned counsel requested that substantive sentence may be modified and fine may be converted as compensation payable to respondent No.2. Having regard to the nature of offence and the object of legislation I am inclined to think that simple imprisonment till rising of the court and compensation of Rs.25,000/- payable to respondent No.2 is sufficient in the ends of justice. 5. Learned counsel requested two months' time to deposit the compensation in the trial court. Counsel requested that petitioner may be permitted to pay compensation directly to respondent No.2. Counsel states that petitioner is not in a position to raise the amount immediately. In the circumstances stated by the learned counsel I am inclined to grant two months' time to the petitioner to deposit the compensation in the trial court. In case of failure, petitioner has to undergo simple imprisonment for two months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.2328/2009 4 ii. Sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.25,000/- ( Rupees twentyfive thousand only) as compensation under Section 357(3) of the Code of Criminal Procedure within two months from this day failing which, he shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through her counsel acknowledging receipt of the compensation within the said period of two months. Petitioner shall appear in the trial court on 24.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 24.9.2009. THOMAS P.JOSEPH, Judge. cks