IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 1889 of 2009() ------------------------------ CRA.31/2008 of SESSIONS COURT, KOLLAM ST.275/2007 of JUDICIAL FIRST CLASS MAGISTRATE-IV, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SIRAJUDEEN, AGED 42 YEARS, S/O. MYTHEEN KUNJU, NALLAVILAYIL, PUNUKKONNOOR, PERUMPUZHA, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SONIA SARJU, W/O. SARJU, NOW RESIDING AT CHERUTHOPPIL HOUSE, ALATHOTTUVA, WEST KALLADA, KOLLAM. PUBLIC PROSECUTOR SHRI JAYAKRISHAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1889 of 2009 -------------------------------------- Dated this the 17th day of June, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in the revision which is not prejudicial to her. 2. This revision is in challenge of judgment of learned Sessions Judge, Kollam in Cr.Appeal No.31 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.2 preferred a private complaint against the petitioner alleging that petitioner issued Ext.P1, cheque dated 2.9.2004 for Rupees two lakhs in repayment of amount he had borrowed from respondent No.2. That cheque was presented for encashment but it was returned on 4.9.2004 as there was no sufficient funds in the account of petitioner. On getting information about dishonour respondent No.2 issued notice to the petitioner on 13.9.2004 intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P2 to P5. Finding of courts below regarding dishonour and issue and service of notice are not under challenge in this revision. Challenge in this Crl.R.P.No.1889/2009 2 revision is regarding the finding as to the due execution of cheque. 3. PW1, power of attorney holder of respondent No.1 (Ext.P6 is the power of attorney) has given evidence regarding transaction. He stated about petitioner borrowing the amount from respondent No.2 and giving the cheque for discharge of that liability. Contention of petitioner is that his brother, Kabeer had money transaction with respondent No.2 and as security for that transaction, respondent No.2 obtained signed blank cheque from petitioner and his brother, Kabeer. It is also stated that respondent No.2 filed a case against said Kabeer and that case was settled. Learned magistrate observed that if the transaction took place as suggested by petitioner and his cheque was in the possession of respondent No.2, that cheque leaf would have been taken back from respondent No.2. 4. It is not disputed that petitioner had given the cheque to respondent No.2 though according to the petitioner in a different circumstance. It is also admitted that Ext.P1 contained the signature of the petitioner. When a negotiable instrument creating liability on petitioner is produced by respondent No.2 from his possession, petitioner had the responsibility to explain how else the cheque happened to be in the custody of respondent No.2. In this case, what is available is only a suggestion made to PW1 on behalf of petitioner which PW1 denied. It is interesting to note that though a notice stating about dishonour of the cheque for Rupees two lakhs and demanding payment of that amount was served on the petitioner, he did not reply. It is difficult to believe that if petitioner did not owe any amount to respondent No.1, he would have refrained from Crl.R.P.No.1889/2009 3 replying the notice served on him. Petitioner could not discredit evidence of PW1 regarding transaction and execution of the cheque. Courts below accepted the evidence of PW1 and found in favour of due execution of the cheque. That finding rest on proper appreciation of evidence and no interference is required since it does not suffer from any illegality, irregularity or impropriety. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for two months and to pay fine of Rupees two lakhs. In default of payment of fine, sentence for two months was also provided. Appellate court did not interfere with the sentence. It is argued that sentence imposed is excessive. 6. So far as substantive sentence is concerned, I am satisfied that considering the nature of offence simple imprisonment till rising of the court is sufficient in the ends of justice. Instead of sentence of fine, it is sufficient that petitioner is directed to pay compensation of Rupees two lakhs and in default of payment to undergo simple imprisonment for two months. 7. Learned counsel for petitioner requested four months’ time to deposit fine in the trial court. Having regard to the difficulties expressed by the petitioner and the amount involved I am inclined to allow that request. Resultantly this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner by learned magistrate is modified as simple imprisonment till rising of the court. ii. Instead of fine, petitioner shall deposit in the trial court for Crl.R.P.No.1889/2009 4 payment to respondent No.2 as compensation Rs.2,00,000/- (Rupees Two lakhs only) within four months’ from this day failing which petitioner shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance with the direction for payment 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 her counsel acknowledging receipt of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on 19.10.2009 to receive the sentence. Crl.M.A.No. 5772 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks