IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2176 of 2009() ------------------------------ CRA NO.172/2006 OF III ADDL. SESSIONS COURT, KOLLAM CC NO.1544/2002 OF JUDICIAL FIRST CLASS MAGISTRATE-I, KOLLAM REVN. PETITIONER(S)/APPELLANT/ ACCUSED ---------------------------- S.SAMBASIVAN,S/O. SIVARAMAN, AGED 62,SAJIBHAVANAM, KALLUMTHAZHAM, KOLLAM. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. K.K.SUDEVAN,SREEVILAS, (DIED) KALLUMTHAZHAM, KOLLAM. 2. THANKAMANI,SREEVILAS, KALLUMTHAZHAM, KOLLAM. 3. STATE OF KERALA REP.BY THE DIRECATOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2176 of 2009 -------------------------------------- Dated this the 7th day of July, 2009. ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to her. Public Prosecutor takes notice for respondent No.3. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Kollam in C.C.No.1544 of 2002 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on a complaint preferred by one K.K.Sudevan. According to him, petitioner borrowed Rs.25,000/- from him and for repayment of that amount issued Ext.P2, cheque dated 4.2.2002. That cheque was dishonoured for insufficiency of funds as proved by Exts.P3 and P4. On getting information about dishonour respondent No.1 served statutory notice on petitioner. Issue and service of notice on petitioner are proved by Exts.P5 to P7. Finding of the courts below regarding those aspects are not challenged. 3. Challenge is regarding the finding of the courts below as to the due execution of the cheque. It is contended that due execution of the cheque is not proved. According to the petitioner he had given the cheque as security to the original complainant. Original complainant died during the pendency of the case in the trial court on 30.5.2003 and thereon his wife (respondent No.2) was Crl.R.P.No.2176/2009 2 impleaded. She prosecuted the case. Her daughter and power of attorney holder gave evidence as PW1. PW1 claimed that she is aware of the transaction and that petitioner had borrowed Rs.25,000/- from her father and issued the cheque. Courts below accepted that evidence. Though petitioner has a contention that he gave signed blank cheque as security to the original complainant he was not able to substantiate that contention. Petitioner also failed to reply the notice. In these circumstances there is no reason to interfere with the finding of the courts below as to due execution of the cheque. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay Rs.25,000/- as compensation to respondent No.2 and in default of payment to undergo simple imprisonment for two months. Appellate court did not interfere. Learned counsel submitted that substantive sentence awarded is excessive and that petitioner is undergoing imprisonment since last one and a half months. Learned counsel requested that petitioner may be granted three months’ time to deposit compensation in the trial court. He stated about the difficulties being experienced by the petitioner in arranging the amount within a short time. On considering all the relevant aspects concerning the sentence I am satisfied that the period of imprisonment already undergone by the petitioner is sufficient so far as substantive sentence is concerned. Considering the circumstances stated by learned counsel I am inclined to grant three months’ time to the petitioner to pay compensation to PW1. In case of default, petitioner has to undergo sentence as ordered by the appellate court. Crl.R.P.No.2176/2009 3 Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified and confined to the period of imprisonment already undergone by him. ii. Petitioner is granted three months' time from today to deposit compensation in the trial court as ordered by that court. In case of default, petitioner shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.2 through his 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 aforesaid time. In case the compensation is not deposited/paid as aforesaid within the said period, petitioner shall appear in the trial court on 9.10.2009 to receive the default sentence. iv. Petitioner shall be released from jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of District Jail, Kollam. THOMAS P.JOSEPH, Judge. cks