IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 1355 of 2009() ------------------------------ CRA.378/2008 of SESSIONS COURT, TRIVANDRUM ST.1595/2005 of JUDICIAL FIRST CLASS MAGISTRATE-III, NEDUMANGAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ANILKUMAR, ANANDU NIVAS, KOTTAYANIMOODU, MITHRA NIKEKTHAN P.O., NEDUMANGAD. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BHUVANENDRA PANICKER, S/O.KRISHNAN, THANUJA MANDIRAM, CHANGA P.O., ARYANADU. R1 BY PUBLIC PROSECUTOR SHIR RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1355 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 dispensed with in view of the order I am proposing to make and which will not prejudice him. 2. On a concurrent finding that petitioner issued the cheque for legally enforceable debt/liability, that cheque was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand petitioner did not pay the amount he stands convicted for offence offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Learned magistrate sentenced him to undergo simple imprisonment for twenty days and to pay Rs.75,000/- as compensation. In appeal the substantive sentence was modified as simple imprisonment till rising of the court and compensation was converted into fine. It is contended that the conviction of the petitioner is not legal or proper. 3. According to respondent No.2, petitioner issued Ext.P1, cheque for Rs.75,000/- to the discharge of the debt due to him which was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Dishonour of cheque for the said Crl.R.P.No.1355/2009 2 reason is proved by Exts.P2 and P3. Issue and service of notice are proved by Exts.P4 to P6. Contention raised by the petitioner when questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) is that he had not borrowed any such amount from respondent No.2 and instead, he had taken a loan of Rs.10,000/- from one Krishnankutty Nair and at that time given signed blank cheque as security. As against that contention the suggestion put to respondent No.2 when the latter was in the box is that petitioner had borrowed Rs.15,000/- from one Sivan. Learned magistrate referred to the apparent discrepancy in the two contentions and found that there was nothing to disbeliee the evidence of respondent No.2 as PW1 and that the failure of petitioner to reply is fatal in the facts and circumstances of the case. That finding was confirmed by the appellate court. The finding regarding guilt is based on legally acceptable evidence and after a proper appreciation of such evidence. I do not find reason to interfere with the conviction of the petitioner. 4. Counsel for petitioner requested that fine imposed by the appellate court may be converted as compensation. In the facts and circumstances of the case I am inclined to think that imprisonment as modified by the appellate court and payment of compensation within a period of three months is sufficient in the ends of justice. Resultantly, this revision petition is allowed in part in the following lines: i. Sentence of fine awarded by the appellate court is converted as compensation of Rs.75,000/- (Rupees Seventyfive thousand only) Crl.R.P.No.1355/2009 3 which the petitioner shall deposit in the trial court for payment to respondent No.1 within three months’ from this day failing which, he shall undergo simple imprisonment for a period of two months. ii. It is made clear that it will be sufficient compliance with direction No.i if petitioner paid the 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 aforesaid time. iii. Petitioner shall appear in the trial court on 28.8.2009 to receive the sentence. Crl.M.A.No.4034 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks