IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 Crl.Rev.Pet.No. 1928 of 2009 ------------------------------ CRA.412/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.930/2002 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVISION PETITIOER/APPELLANT/ACCUSED: --------------------------------------------------------- PRATHAP.A.C S/O.A.P.SUKUMARAN, RAM NIVAS HOUSE, S.S.ROAD,THALASSERY, KANNUR DIST. BY ADV. SRI.O.D.SIVADAS SRI.P.C.HARIDAS FOR R2 RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SOLAR ENTERPRISES,KURUVILLANGED, REP. BY ITS PROPRIETOR, SHAJI THOMAS, S/O. THOMAS KOLADIYIL,PULLYANNOOR, PALA. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1928 of 2009 --------------------------------------- Dated this 25th day of June 2009 ORDER On a complaint preferred by respondent No.1 petitioner faced trial in the court of learned Judicial First Class Magistrate, Pala for offence punishable under Sec.138 of the Negotiable Instruments Act. According to respondent No.2, petitioner is engaged in distribution of tread rubber. Petitioner purchased tread rubber from respondent No.1 and for the sum of Rs.59,284/- due to him issued Ext.P1, cheque dated 20-07-02. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2 and P3. On getting intimation about the dishonour respondent No.2 issued notice to the petitioner on 17-08-02 intimating dishonour and demanding payment of the amount. Notice was served on the petitioner. Dishonour of the cheque for the reason stated above and issue and service of notice are proved by Ext.P2 to P7. Respondent No.2 gave evidence as PW1 and stated about the transaction which led to the execution of the cheque. Petitioner Crl.R.P.No.1928 of 2009 2 contended that no such amount is due to respondent No.2 and he had made payments to respondent No.2 which were not properly accounted. In the course of evidence PW1 admitted that he had received Rs.1,888/- from the petitioner but according to respondent No.2, before execution of the cheque. He also produced Ext.P8, letter dated 20-08-02 sent by the petitioner where he stated that the sum of Rs.59,284/- will be paid to respondent No.2 without delay. Courts below accepted the evidence of respondent No.2 and held that petitioner issued the cheque for the discharge of a legally enforceable debt or liability. There is no reason to disbelieve the evidence of PW1. Petitioner did not also reply to the statutory notice served on him. Hence conviction of the petitioner needs no interference. 2. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. He was directed to pay Rs.59,284/- as compensation and in default of payment to undergo simple imprisonment for two months. Learned Additional Sessions Judge while confirming conviction modified the Crl.R.P.No.1928 of 2009 3 substantive sentence as simple imprisonment till rising of the court. Petitioner was directed to pay fine of Rs.59,284/- and in default of payment to undergo simple imprisonment for three months'. It was also directed that fine if realized shall be given to respondent No.2 (PW1) as compensation. Learned counsel for the petitioner submits and it is admitted by counsel for respondent No.2 also that during the pendency of appeal petitioner had paid Rs.25,000/- to respondent No.2 through counsel. If that amount was paid the balance amount payable to respondent No.2 as per the cheque is Rs.34,284/-. Counsel for respondent No.2 submits that cheque is of the year 2002 issued in a commercial transaction and hence reasonable amount may be awarded as compensation to respondent No.2. 3. It is not disputed that the transaction arose in the course of business between petitioner and respondent No.2. The cheque was issued in discharge of the liability arising out of commercial transaction. Payment of Rs.25,000/- was made during the time of the appeal. In these circumstances it is only just and proper to Crl.R.P.No.1928 of 2009 4 direct petitioner to pay a sum of Rs.37,000/- to respondent No.2 as compensation. 4. Counsel for petitioner requested that three months time may be granted for payment of the compensation. Considering the circumstances stated by learned counsel regarding the financial difficulties of the petitioner, I am inclined to grant two months' time to pay compensation. Resultantly this revision is allowed in part to the following extent; (i) Substantive sentence awarded to the petitioner by appellate court is retained. The sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.2, Rs.37,000/- (Rupees Thirty Seven Thousand Only) as compensation within two months from this day failing which petitioner shall undergo simple imprisonment for two months'. (ii) It is made clear that it will be sufficient compliance of Crl.R.P.No.1928 of 2009 5 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 acknowledging receipt of the amount within the aforesaid period. (iii) Petitioner shall appear in the trial court on 27-08-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/