IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.REV.PET.NO. 1658 OF 2009() --------------------------------------------- CRA.8/2005 OF ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.2773/2000 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------- M.P.KOPPAN, S/O.RAMAN, MELEPURAKKAL HOUSE, POMBRA PO, OTTAPALAM. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVINDRANATH RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE -------------------------------------------------------------------------------- 1. GOPALAKRISHNAN K.R., S/O.RAMASWAMY IYER, KUNDARANI MADAM, KARAKURUSSY PO, MANNARKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1658 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. 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 respondent No.1. 2. Respondent No.1 filed a private complaint against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). His case is that petitioner borrowed Rs.50,000/- from him on 28.5.2000 undertaking to repay the same within three months and on his demanding payment after the said period, petitioner issued Ext.P1, cheque dated 6.9.2000 for the said amount which was dishonoured for insufficiency of funds as proved by Exts.P2, P3 and P6 and that in spite of statutory notice being served on the petitioner as proved by Exts.P4 and P5, he did not pay the amount. Respondent No.1 gave evidence as P.W.1 and testified to his case. Case pleaded by the petitioner is that he purchased cow- dung on credit basis and issued the cheque as security. He later paid the entire amount but respondent No.1 did not return the cheque. Petitioner examined D.W.1 on his side who claimed that petitioner purchased cow-dung from respondent No.1 and amount due was CRL. R.P. No.1658 of 2009 -: 2 :- Rs.8,000/-. Taking note of the discrepancy in the evidence of D.W.1 from the case pleaded by respondent No.1 courts below did not act upon that evidence. There is no acceptable evidence to show that petitioner gave any signed blank cheque in the circumstances pleaded by him and that the amount due to respondent No.1 was paid. The mere examination of a defence witness is not sufficient. His evidence must inspire confidence. It is also pertinent to note that petitioner did not reply to the statutory notice served on him. If actually no amount was due from the petitioner as claimed in the notice he would have replied accordingly. Failure to reply is very relevant. Nothing is brought out to disbelieve the evidence of P.W.1. There is nothing illegal, irregular or improper in the courts below accepting the evidence of respondent No.1 (P.W.1) and finding that petitioner issued the cheque for the discharge of a legally enforceable debt/liability and that he failed to rebut the presumption under Sec.139 of the Act. 3. Trial court sentenced the petitioner to undergo simple imprisonment for three months. He was directed to pay compensation of Rs.50,000/-. In appeal substantive sentence was modified to simple imprisonment till rising of the court but compensation payable was fixed as Rs.60,000/-. Compensation CRL. R.P. No.1658 of 2009 -: 3 :- awarded under Section 357(3) of the Code of Criminal Procedure is not part of the sentence. Appellate court is also competent to award compensation. Hence enhancement of compensation while modifying the sentence cannot be said to be without jurisdiction. I do not find reason to interfere with the sentence and compensation as modified by the appellate court. 4. Learned counsel for petitioner requested four months' time to deposit the compensation in the trial court. Counsel stated that petitioner is in financial difficulty. Considering the circumstances stated by the learned counsel and the amount involved, I am inclined to grant two months' time to the petitioner to deposit the amount. Resultantly, this revision fails. It is dismissed. Petitioner is granted two months' time from this day to deposit the compensation in the trial court as ordered by the appellate court. In default of payment petitioner shall undergo simple imprisonment for one month. Petitioner shall appear in the trial court on 27.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv