IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 2608 of 2009() ------------------------------ CRA.636/2006 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM ST.184/2005 of JUDICIAL FIRST CLASS MAGISTRATE-IV, KOCHI .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- RAMACHANDRA MENON,AGED 67 YRS, S/O.NARAYANA MENON, RESIDING AT 5/926, G.K.AVENUE ROAD, MATTANCHERY, KOCHI.2. BY ADV. SRI.T.MADHU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE P.PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.LAKSHMANA PRABHU, S/O.VASUDEVA PRABHU, DOOR NO.9/1311,AJANTHA ROAD, KOCHI.2. ADV. SRI.EBY P.PAUL FOR R2 Public Prosecutor : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2608 of 2009 --------------------------------------- Dated this 12th day of August 2009 ORDER This revision is in challenge of judgment of learned 4th Additional Sessions Judge-4, Ernakulam in Criminal Appeal No.636 of 2009 confirming conviction but modifying sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.2, petitioner borrowed Rs. One Lakh from him and executed a demand promissory note, Ext.P1. Along with that, petitioner also issued a post dated cheque (Ext.P2) bearing date 31-03-2004 as security. Later respondent No.2 demanded repayment of the amount. Petitioner did not comply. Hence respondent No.2 presented the cheque for encashment. That cheque was dishonoured as 'it exceeded arrangement'. Dishonour of cheque for the said reason is proved by Exts.P3, X1 and X2. Service of statutory notice on petitioner is proved by Exts.P4 and P5. According to the petitioner, there was an agreement for sale of property belonging to his son and in connection with that, the cheque and promissory note were executed. Respondent No.2 gave evidence as PW1. He claimed that the sum of Rs. One Lakh was advanced to the petitioner and petitioner executed Ext.P1 and P2. He did not dispute that there was an agreement regarding sale of property but, claimed that the sum of Rs. One Lakh was advanced to the petitioner even before that. In the Crl.R.P.No.2608 of 2009 2 course of cross examination he admitted that after service of statutory notice, petitioner paid Rs.40000/- to him. Courts below found in favour of due execution of the cheque. 2. It is not disputed that petitioner executed Exts.P1 and P2 in favour of respondent No.2. The contention that the same were in respect of property transaction is not proved or probabilised. Courts below found that there is no reason to disbelieve the evidence of respondent No.2. Petitioner did not also respond to the statutory notice served on him. In these circumstances, I do not find reason to interfere with the conviction of petitioner. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months. There was also a direction for payment of compensation of Rs.61000/-. In default of payment petitioner was to undergo simple imprisonment for two months. Appellate court while confirming direction for payment of compensation and default sentence modified the substantive sentence as simple imprisonment for one week. It is submitted by learned counsel that sentence imposed is excessive. He requested that petitioner may be granted six months' time to deposit the compensation. According to learned counsel petitioner is aged and suffering from old age illness and is not able to raise the amount immediately. 4. Having regard to facts and circumstances of the case and Crl.R.P.No.2608 of 2009 3 nature of the offence I am inclined to think that simple imprisonment till rising of the court and compensation as ordered by the courts below is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation and default sentence at the instance of petitioner. Considering circumstances stated by learned counsel petitioner is granted time till 12-01-2010 to deposit compensation. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 12-01-2010 to deposit compensation in the trial court as ordered by the courts below. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 13-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 13-01-2010. THOMAS P JOSEPH, JUDGE Sbna/