IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 2587 of 2009() ------------------------------ CRA.922/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM CC.153/2006 of JUDICIAL FIRST CLASS MAGISTRATE, NEDUMANGAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------- SHIHABUDEEN, PROPRIETOR, ASIAN HOLLOW BRICKS, RUBIYA MANZIL, KOLLAMCAVU, PAZHAKUTTY P.O. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------- 1. DOMINIC, S/O.KUTTAN NADAR, THADATHARIKATHU VEEDU, MANIYAMCODE, CHULLIMANNOOR P.O., KARIPOOR VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2587 of 2009 --------------------------------------- Dated this 11th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-4, Thiruvananthapuram in criminal appeal No.922 of 2007 confirming conviction but modifying the sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.150000/- from him and issued Ext.P1, cheque dated 07-12-2005 for repayment of that amount. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. According to the petitioner, he had no transaction with respondent No.1 and was seeing him for at the first time in court. He claimed that he had borrowed Rs.120000/- from DW1 on the security of documents pertaining to his vehicles and three signed blank cheques including Ext.P1. Of the said amount he repaid Rs.one lakh with interest. Documents concerning of one of the vehicles were returned to him. The complaint is at the instance of DW1 misusing the cheque. Crl.R.P.No.2587 of 2009 2 Petitioner gave evidence as DW2 and proved Exts.D1 to D3, receipts said to be issued by DW1 in his favour. Court below found that Exts.D1 to D3 do not in any way bind respondent No.1, accepted his case and found in favour of due execution of the cheque. That finding is under challenge in this revision. 3. It is true that DW1 admitted that petitioner (DW2) had borrowed Rs.35000/- from him on security of documents of vehicles. But he denied that Exts.D1 to D3 are signed by him. DW2, petitioner ofcourse claimed that Exts.D1 to D3 were issued by DW1. There is no acceptable evidence in that line except what petitioner testified as DW1. At any rate, courts below found and it is not shown to be otherwise, that Exts.D1 to D3 do not affect the claim of respondent No.1 based on Ext.P1. It is not disputed that Exts.D1 to D3 do not refer the cheque in question. So far as failure of petitioner to reply to statutory notice is concerned he claimed that he could not reply since he was laid up due to chickenpox. Regard that there was no reliable evidence. Courts below found in favour of due execution of the cheque. That finding is based on proper appreciation of evidence and require no interference in revision as it is not shown to be vitiated by any illegality, irregularity or impropriety. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month and directed payment of Crl.R.P.No.2587 of 2009 3 compensation of Rs.150000/-. Default sentence of imprisonment for twenty days' was also imposed. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Though in the operative portion in the judgment of appellate court it is stated that compensation payable by petitioner is Rs.one lakh, it is seen from para 11 of the judgment that after taking into consideration compensation awarded by trial court, appellate court observed that petitioner has to pay the cheque amount of Rs.150000/- as compensation to respondent No.1. In the preface of judgment also it is stated that compensation payable is Rs.150000/-. It is therefore clear that the statement in the operative portion of the judgment of appellate court that compensation payable is Rs.one lakh is only a clerical error. Hence I make it clear that compensation payable by petitioner is Rs.150000/-. There is no reason to interfere with the compensation or default sentence of one month imposed by learned Additional Sessions Judge at the instance of petitioner. 5. Learned counsel has requested that petitioner may be granted five months time to deposit compensation. It is stated that petitioner is not able to raise the entire amount immediately on account of financial difficulties. Having regard to the circumstances stated by learned counsel I am inclined to grant time till 11-01-2010 to deposit the compensation. Crl.R.P.No.2587 of 2009 4 Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 11-01-2010 to deposit the sum of Rs.150000/- (Rupees One Lakh Fifty Thousand Only) by way of compensation to respondent No.1 in the trial court failing which petitioner has to undergo simple imprisonment for one month. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 receipt of the amount within the period aforesaid. Petitioner shall appear in the trial court on 12-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 12-01-2010. THOMAS P JOSEPH, JUDGE Sbna/