IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.REV.PET.NO. 1945 OF 2009() ---------------------------------------------- CRA.529/2007 OF ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.2074/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- PARVATHAM,W/O.SADASIVAN, MUNICIPALITY WORKER,16/444A,CHIRAKKAD, KUNNANUR,KUNNATHURMEDU,PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. RAJAMMA,W/O.DURAI,DURAI MAHAL, CHIRAKKAD,KUNNANUR,KUNNATHURMEDU,PALAKKAD. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP OR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1945 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2009 O R D E R -------------- Notice to respondent No.2 is dispensed with in view of the order I am proposing to make and which is not prejudicial to her. Public Prosecutor took notice for respondent No.1. 2. This case arose on a private complaint filed by respondent No.2 under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.2, petitioner who is her neighbour borrowed Rs.60,000/- from her and for repayment of that amount issued Ext.P1, cheque dated 18.3.2006. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P3 to P3(b). There is no challenge to the finding of the courts below as to cause of dishonour and issue and service of notice. 3. Respondent No.2 gave evidence regarding borrowal and execution of the cheque. According to petitioner she had taken a loan of Rs.15,000/- from respondent No.2 and gave a signed blank cheque as security long back. She repaid that amount but the cheque was not returned. That cheque was misused. CRL. R.P.No.1945 of 2009 -: 2 :- 4. Respondent No.2 gave evidence as P.W.1 regarding the transaction and execution of the cheque. It is true that petitioner has an explanation as to how else the cheque happened to be in the custody of respondent No.2. But that explanation is not substantiated by any evidence or circumstances. Nothing was brought out to disbelieve evidence of respondent No.2. Suggestion made on behalf of petitioner was denied by respondent No.2. It is seen that petitioner did not reply to the statutory notice served on her. If actually no amount was due petitioner would have normally replied to the notice which claimed a fairly big amount. In the circumstances courts below are justified in not accepting the explanation given by petitioner, believing the evidence of respondent No.2 and holding in favour of due execution of the cheque. Petitioner has not rebutted the presumption appearing against her under Section 139 of the Act. There is no reason to interfere with the conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay compensation of Rs.60,000/- to respondent No.2. Default sentence of imprisonment for two months was also provided. Appellate court set aside the sentence and directed petitioner to pay fine of Rs.70,000/- with a default sentence of imprisonment for three months. It was further directed that fine if any, realised will be paid to respondent No.2 as compensation under Sec.357(1) of the Code of Criminal CRL. R.P.No.1945 of 2009 -: 3 :- Procedure. Learned counsel submitted that the sentence awarded is excessive, petitioner is working in a Municipality, fine imposed may be converted as compensation payable directly to respondent No.2 and four months' time may be granted to petitioner to deposit the compensation as petitioner is unable to raise the amount immediately. 6. Having regard to the nature of offence which does not involve any moral turpitude and considering the submissions of learned counsel I am inclined to modify the sentence awarded by the appellate court. In the appeal from conviction and sentence appellate court was competent to alter or modify the sentence though not as to enhance the same. This Court has held so in Radhakrishnan Nair v. Padmanabhan (2000 (2) KLT 349). There, trial court awarded sentence of fine (allegedly) exceeding Rs.5,000/-. Appellate court converted the sentence as simple imprisonment till rising of the court and directed payment of compensation. This Court held that it did not amount to any enhancement of sentence but is only a modification. This Court while exercising revisional power under Section 401 of the Code of Criminal Procedure can exercise such power as are vested on a court of appeal. Hence this Court can modify the sentence. As requested by learned counsel, I am inclined to covert the fine payable as compensation for which it is necessary to provide a sentence of imprisonment. In the circumstances of the case petitioner CRL. R.P.No.1945 of 2009 -: 4 :- is to be sentenced to undergo simple imprisonment till rising of the court. Fine is converted as compensation payable to respondent No.2. Considering the request made by counsel, petitioner is granted four months' time to deposit the compensation in the trial court. Resultantly, this revision is allowed in part to the following extent. (i) Sentence imposed by the appellate court is set aside. (ii) Petitioner is sentenced to undergo simple imprisonment till rising of the court. (iii) Petitioner is directed to deposit in the trial court within four months from this day Rs.70,000/- (Rupees Seventy thousand only) as compensation for payment to respondent No.2 under Section 357(3) of the Code of Criminal Procedure. In case of default, she shall undergo simple imprisonment for three months. (iv) It is made clear that it shall be sufficient compliance of condition (iii) if petitioner paid the compensation to respondent No.2 through her 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 said period of four months. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. CRL. R.P.No.1945 of 2009 -: 5 :- vsv