IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 12 of 2001() ---------------------------- CRA NO.148/1997 OF SESSIONS COURT, MANJERI. S.T.NO.2139/1995 OF JUDICIAL FIRST CLASS MAGISTRATE I, MANJERI REVISION PETITIONER: --------------------- T.ABBAS, S/O.MOIDEENKUTTY, THALAPPIL HOUSE, MANGALASSERY, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/RESPONDENT/COMPLAINANT & STATE: ---------------- 1. MANAGING PARTNER, AISHWARYA FINANCE, MANJERI, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. ADV. SRI.ANIL SIVARAMAN FOR R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.12 of 2001 -------------------------------------- Dated this the 23rd day of September, 2008. ORDER Heard the counsel on both sides. 2. The revision petitioner stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the Act’) on the concurrent finding that the cheque issued by him for the discharge of the debt was dishonoured for insufficiency of the funds and that in spite of the dishonour intimation and demand for payment of the amount covered by the cheque, he did not pay the amount. Trial court sentenced him to undergo simple imprisonment for four months though, the procedure for summary trial was followed. The appellate court corrected the illegality in sentence and reduced the sentence as simple imprisonment for three months. 3. Learned counsel for the revision petitioner submits that going by Ext.P7 and the evidence of DW1, no amount as stated in Ext.P2, the cheque was due to the first respondent and instead, the signed blank cheque was misused. 4. Ext.P2 is the cheque issued on 30.4.1995 for Rs.7,850/-. According to the first respondent, the revision petitioner had borrowed Rs.20,000/-, repaid a portion and for the balance sum of Rs.7,850/-, issued Ext.P2. Ext.P7 and Ext.D1 show that the amount due to the first respondent as Crl.R.P.No.12/2001 2 on 9.6.1994 was only Rs.4,850/- while Ext.P2, the cheque dated 30.4.1995 is for Rs.7,850/-. PW1 who gave evidence for the first respondent explained that the sum of Rs.7,850/- covers the balance sum of Rs.4,850/- as on 9.6.1994 and subsequent interest as agreed between the parties. Learned Magistrate also took note of the difference in the amount in Exts.P7 and P2 and accepted the case of the first respondent spoken by PW1. There is no reason to interfere with the concurrent finding of fact in that regard. 5. Though in the trial court a contention was raised that Ext.P4, the notice is not valid, no such contention is advanced before me and in the nature of the claim made in Ext.P4, the contention cannot also be accepted. In the circumstances, the conviction of the revision petitioner requires no interference. 6. The learned counsel then submitted that the sentence awarded is excessive. He requested that the sentence may be converted as compensation. Ext.P2 was issued to the first respondent on 30.4.1995. More than 13 years have now elapsed. Taking these aspects into account, I am of the view that the revision petitioner has to pay just compensation to the first respondent which is fixed as Rs.10,000/-(Rupees Ten thousand only). Substantive sentence can be modified as simple imprisonment till the rising of the court. The Revision Petition is allowed in part in the following lines:- (1) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. Crl.R.P.No.12/2001 3 (2) The revision petitioner is directed to deposit in the trial court for payment to the first respondent Rs.10,000/- (Rupees Ten thousand only) as compensation within two months from this day failing which, he shall undergo simple imprisonment for two months. In case the revision petitioner has deposited any amount in the trial court, that amount will be adjusted in the compensation fixed hereby. (3) Revision petitioner shall surrender in the trial court on 25.11.2008 to receive the sentence. Bail bond is cancelled. Crl.M.P.No.49 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.12/2001 4 Thomas P.Joseph, J. Crl.R.P.No.12 of 2001 ORDER 23rd September, 2008