IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.REV.PET.NO. 2249 OF 2009() ------------------------------------------------ CRA.448/2007 OF ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.243/2006 OF JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD .................... REVN. PETITIONER(S): APPELLANT-ACCUSED: -------------------------------------------------------------- SHAJI, AGED 35 YEARS, S/O.NARAYANAN THAIPPARAMBIL VEEDU, THRIKKUNNAPPUZHA VILLAGE FROM SANGAM FABRICS, THRIKKUNNAPPUZHA JN KARTHIKAPPALLY TALUK. BY ADV. SRI.B.PRAMOD RESPONDENT(S) - RESPONDENT - COMPLAINANT: -------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. 2. MURALEEDHARAN NAIR, S/O.RAMAN NAIR MADHAVI SADANAM, PALLIPPATTU MURI, THRIKKUNNAPPUZHA VILLAGE. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2249 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of July, 2009 O R D E R -------------- Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2 2. On a complaint preferred by respondent No.2, petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Haripad in S.T. No.243 of 2006 for offence punishable under Section 138 of the Act. 3. According to respondent No.2, petitioner borrowed Rs.50,000/- from him on 25.12.2005 and for repayment of that amount issued Ext.P1, cheque on 10.2.2006. That cheque was dishonoured for insufficiency of funds which is proved by Ext.P2. Respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment which is proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and stated to his case. According to the petitioner he used to hire vehicles belonging to respondent No.2 for the purpose of taking goods to his shop and accordingly had taken the vehicle of respondent No.2 to Alappuzha for purchasing and transporting goods to his shop. For payment of the CRL. R.P. No.2249 of 2009 -: 2 :- amount to the owner of the goods, he had kept three signed blank cheque leaves in the vehicle, one of which was found missing on 8.2.2006. On 11.2.2006 he met respondent No.2 and enquired about the missing cheque. Respondent No.1 told him that he had taken that cheque since Rs.4,000/- was due to him from the petitioner. Next day petitioner met respondent No.2 and offered Rs.2,000/- but he demanded a further Rs.4,000/-. Petitioner contended that the cheque stealthily taken from him by respondent No.1 has been misused. Courts below were not impressed by the case pleaded by petitioner and found him guilty. So far as execution of the cheque is concerned, Ext.P1 contained signature of petitioner which is drawn on the account maintained by him. There is no evidence to show that Ext.P1 was lost from the possession of petitioner as pleaded by him. If Ext.P1 was stealthily taken by respondent No.2 petitioner would have preferred complaint to the appropriate authorities. Nor did he inform his Bank about missing of the cheque. Petitioner did not reply to the notice served on him. Courts below considered the evidence and found in favour of due execution of the cheque. There is little reason to interfere. 4. Learned magistrate sentenced petitioner to undergo simple CRL. R.P. No.2249 of 2009 -: 3 :- imprisonment for six months and directed him to pay Rs.50,000/- as compensation. In default of payment sentence of simple imprisonment for four months also was provided. Appellate court did not interfere with the sentence, direction for payment of compensation or the default sentence. Learned counsel submitted that sentence awarded to the petitioner may be modified and he may be granted six months' time to deposit compensation. Counsel submits that petitioner is unable to raise the amount immediately. Having regard to the nature of offence I am satisfied that simple imprisonment till rising of the court with compensation and default sentence as awarded by the appellate court are sufficient in the ends of justice. Sentence is modified accordingly. Petitioner is granted time till 30.12.2009 to deposit compensation. 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. (ii) Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court as ordered by the appellate court failing CRL. R.P. No.2249 of 2009 -: 4 :- which he shall undergo default sentence as ordered by the appellate court. (iii) It is made clear that it shall be sufficient compliance of condition (ii) 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 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 shall be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv