IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.Rev.Pet.No. 1618 of 2009() ------------------------------ CRA.1073/2007 of I ADDL.SESSIONS COURT, KOZHIKODE CC.231/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MUHAMMAD ANWAR, SON OF C.K.AMU, PUTHAN VEETTIL HOUSE, FATHIMA MANZIL, RAYOROTH, KARINGAMANNA, PROPRIETOR, ANEESH ENTERPRISES, THAMARASSSERY P.O. KARADI. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT(S): RESPONDENTS- COMPLAINANT AND STATE ------------------------------------------------- 1. K.K.MOIDU, SON OF KUNHABDULLA HAJI, KOLAKANDATHIL HOUSE, PALERI, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R2 BY PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1618 of 2009 -------------------------------------- Dated this the 26th day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Judgment of learned I Additional Sessions Judge, Kozhikode in Crl.Appeal No.1073 of 2007 is under challenge in this revision. Respondent No.1 filed a complaint against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Learned magistrate found him guilty, convicted and sentenced him to undergo simple imprisonment for six months and directed him to pay Rupees nine lakhs as compensation. In appeal the substantive sentence was modified to simple imprisonment till rising of the court. Compensation was converted into fine. 3. Case of respondent No.1 is that for the discharge of liability to the tune of Rupees nine lakhs due to him, petitioner issued Ext.P1, cheque dated 28.1.2006 which was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment petitioner did not pay the amount. Respondent No.1 gave evidence as PW1 and testified to his case. Dishonour of the cheque for the said reason is proved by Exts.P2 and P3. According to respondent No.1, he issued notice to the petitioner intimating dishonour and Crl.R.P.No.1618/2009 2 demanding payment of the amount. Issue and service of notice are proved by Exts. P4 to P6. Contention of the petitioner is that he had no transaction with respondent No.1 and instead, one Cleetus had sold some landed property to respondent No.1 for which petitioner acted as a broker. Respondent No.1 gave Rs.50,000/- as advance to the said Cleetus through the petitioner. The transaction failed. Respondent No.1 demanded repayment of the said sum of Rs.50,000/-. Cleetus gave a signed blank cheque of the petitioner which Cleetus was in possession to respondent No.1. Though it was so pleaded, petitioner did not attempt to prove or probabilise that. That, Ext.P1 contained the signature of the petitioner is admitted and proved. He did not also give any reply to the notice intimating dishonour and demanding payment of the amount. Nothing is brought out to disbelieve the evidence of respondent No.1 as PW1. In these circumstances courts below are justified in concluding that petitioner issued Ext.P1, cheque for the discharge of the legally enforceable debt/liability. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Therefore, conviction is legal and proper and required no interference. 4. The substantive sentence of imprisonment awarded by the learned magistrate was modified by the appellate court as simple imprisonment till rising of the court. Compensation awarded by the learned magistrate was converted as fine of Rs.9,00,000/-. Learned counsel for petitioner submits that fine may be modified as compensation as awarded by the trial court permitting the petitioner to pay the amount directly to respondent No.1. He requested four months time for the petitioner to pay the amount. Considering the submission Crl.R.P.No.1618/2009 3 made by learned counsel and the nature of the offence committed I am inclined to accept that request. Petitioner is granted three months’ time to deposit the compensation in the trial court. So far as substantive sentence as modified by the appellate court is concerned, there is little reason to interfere. Resultantly, this revision is allowed in part in the following lines: i. Sentence of fine awarded by the appellate court is converted as compensation of Rs.9,00,000/- (Rupees nine lakhs only) 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 five 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 the 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.4922 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks