IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.REV.PET.NO. 1757 OF 2009() --------------------------------------------- CRA.133/2005 OF ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.573/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... REVN. PETITIONER(S):/APPELLANT/ACCUSED ------------------------------------------------------------------ ARUMUGHOM, S/O.PANDARAM ACHARY, BANK OF INDIA, P.T.P.NAGAR, THIRUVANANTHAPURAM-38. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. V.K.P.NAIR, POPULAR ENTERPRISES, T.V.BUILDING, BALARAMAPURAM P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 SRI.MANU V. FOR R1 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1757 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of June, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram in Crl. Appeal No. 133 of 2005 confirming conviction of petitioner under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and sentence awarded by learned magistrate. 2. Respondent No.1 claimed that petitioner borrowed Rs.1,50,000/- from him and issued Ext.P1, cheque dated 5.4.2006. That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2, P3, P7 and P8 and evidence of P.Ws.2 and 3. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are proved by Exts.P4 to P6 and testimony of P.W.4, official of the Postal Department. Respondent No.1 gave evidence as P.W1 and testified to his case. He claimed that petitioner signed the cheque in his presence. Contention raised by the petitioner is that he had no transaction with respondent No.1, his brother had some transaction with respondent No.1 and in connection with that he handed over two signed blank cheques to his brother who in turn handed over the same to respondent No.1. CRL. R.P. No.1757 of 2009 -: 2 :- Petitioner examined D.W.1. He stated that he gave two cheques to respondent No.1. Courts below did not accept that contention and found in favour of respondent No.1 regarding due execution of cheque. It is seen that in spite of statutory notice, petitioner did not reply taking up a contention as the one now attempted to be pressed into service. D.W.1, examined by petitioner is none other than his brother. There is no reliable evidence of any transaction between D.W.1 and respondent No.1. It is admitted by petitioner that the cheque is drawn on the account maintained by him. Respondent No.1 has given evidence regarding the transaction and execution of cheque. Nothing is brought out to discredit his evidence. In the facts and circumstances of the case courts below are justified in holding in favour of due execution of cheque. Petitioner has failed to rebut the presumption under Sect.139 of the Act. There is no reason to interfere with the conviction of the petitioner. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. He was directed to pay compensation of Rs.1,50,000/-. But no default sentence was provided. Courts have the power to impose default sentence for non-payment of compensation. Appellate Court confirmed the conviction and sentence. CRL. R.P. No.1757 of 2009 -: 3 :- Considering the facts and circumstances of the case, nature of the offence and amount involved, I am satisfied that simple imprisonment till rising of the court and compensation as awarded by the courts below is sufficient in the ends of justice. In case of default, petitioner has to undergo simple imprisonment for three months. 4. Counsel for petitioner requested four months' time to deposit the composition in the trial court. Considering the circumstances stated by the counsel, petitioner is granted three months' time to deposit the composition. Resultantly, the 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 three months' time from this day to deposit Rs.1,50,000/- (Rupees One lakh and Fifty thousand only) as compensation in the trial court for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) 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 CRL. R.P. No.1757 of 2009 -: 4 :- receipt of the compensation within the said period of three months. Petitioner shall appear in the trial court on 8.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv