IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 1893 of 2009() ------------------------------------- AGAINST JUDGMENT IN CRA.146/2007 of SESSIONS COURT, THODUPUZHA DTD 25.3.2009 AGAINST JUDGMENT IN CC.186/2005 of JUDL. FIRST CLASS MAGISTRATE COURT, DEVIKULAM .............................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------ PALANI, S/O.SHANMUGHAN, L D CLERK, MARAYOOR GRAMA PANCHAYATH, MARAYOOR, DEVIKULAM TALUK. BY ADV. SRI.T.J.MICHAEL RESPONDENTS/RESPONDENTS: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GRACY, W/O.JAGATHALAN, RAVI ILLAM, PUTHACHIVAYAL, MARAYOOR, DEVIKULAM TALUK. PUBLIC PROSECUTOR MR. C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1893 OF 2009 ---------------------------------------- Dated this the 18th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make which is not prejudicial to her. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate, Devikulam in C.C.No.186/2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.2 preferred a complaint alleging that for discharge of liability petitioner issued Ext.P1, cheque dated 7.6.2005 for Rs.1,25,000/-. That cheque was dishonoured for lack of sufficient funds in the account of the petitioner. On getting intimation about dishonour on 15.6.2002 respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment. That notice was served on petitioner on 5.7.2005. Petitioner did not pay the amount. Petitioner did not also reply. Respondent No.2 gave evidence as PW1 and testified to her case. Ext.P1 is the cheque in question. Crl.R.P.No.1893/2009 2 Its dishonour for the reason sated above is proved by Exts.P2 and P3. Issue and service of notice are proved by Exts.P4 and P5. Contention raised by the petitioner is that himself and respondent No.2 are neighbours, his brother-in-law (DW1) was in need of some money and approached him. He advised DW1 to take a loan from respondent No.2. Respondent No.2 asked for a 'local cheque'. Accordingly for the purpose of security for the amount advanced to DW1, respondent No.2 obtained a signed blank cheques from petitioner and DW1. It is the further contention of petitioner that though the cheque was given to respondent No.2, she did not lend money to DW1. Cheque given by petitioner has been misused. Courts below were not inclined to accept that defence of petitioner and found her guilty. That finding is under challenge in this revision. 3. So far as dishonour of the cheque and issue and service of notice are concerned it is proved by Exts.P2 to P5 and that is not challenged before me. On the question of execution of the cheque, respondent No.2 gave evidence as PW1. It has come in evidence that respondent No.2 has been running a provision store. Hence her capacity to raise the Crl.R.P.No.1893/2009 3 amount cannot be disputed. Moreover even as per the version of the petitioner, respondent No.2 is capable of raising the necessary funds. According to the petitioner, his brother-in-law approached respondent No.2 for a loan. Signature in Ext.P1 is admitted by petitioner also. That the cheque is drawn on the account maintained by him is also admitted and proved. That cheque is produced by respondent No.2 from her custody. It is true that DW1, brother-in-law of petitioner has given evidence in his favour. But, evidence of DW1 is not sufficient to disbelieve the version of respondent No.2 and her evidence as PW1 regarding the transaction and execution of the cheque. Failure of petitioner, without sufficient explanation to reply to the notice served on him is also relevant. Nothing is brought out to disbelieve the evidence of PW1. Courts below have considered the evidence and circumstances and found in favour of due execution of cheque. As there is no illegality, irregularity or impropriety in the finding entered by the courts below or in the assessment of evidence, no interference is called for in revision. Therefore, conviction of the petitioner cannot be assailed. 4. Learned magistrate sentenced the petitioner to Crl.R.P.No.1893/2009 4 undergo Simple Imprisonment for three months and directed him to pay Rs.1,25,000/- (Rupees one lakh twenty five thousand only) as compensation but without providing any default sentence though it is well within the power of courts to order default sentence for non-payment of compensation. Appellate Court did not interfere with the sentence as well. Learned counsel requested that substantive sentence may be modified and petitioner may be given four months' time to pay compensation. 5. Having regard to the nature of offence and the circumstances stated by learned counsel as to the financial difficulty of the petitioner to raise the amount immediately, I am inclined to grant three months' time to the petitioner to pay compensation. At the same time, substantive sentence can be modified as Simple Imprisonment till rising of the court. I make it clear that in case of failure to pay compensation within the aforesaid period of three months, petitioner has to undergo Simple Imprisonment for three months. Resultantly, this revision is allowed in part to the following extent. i) Substantive sentence awarded to the petitioner is Crl.R.P.No.1893/2009 5 modified as Simple Imprisonment till rising of the court. ii) Petitioner shall deposit the compensation ordered by the courts below in the trial court for payment to respondent No.2 within three months from this day failing which petitioner shall undergo Simple Imprisonment for three 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 his counsel within the aforesaid period acknowledging receipt of compensation. iv) Petitioner shall appear in the trial court on 22.9.2009 to receive the sentence. Execution of warrant if any against petitioner shall stand in abeyance till 22.9.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1893/2009 6