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. 1947 of 2009() ------------------------------ CRA.371/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.76/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SURENDRAN, AGED 51 YEARS, PEON, A.D.O.OFFICE, THIRUVALLA, NOW RESIDING AT RATNA VILASOM, PODIYADI P.O., THIRUVALLA. BY ADV. SRI.V.MANOJ KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. UNNIKRISHNAN, AGED 52 YEARS, S/O.SREEDHARAN, SAJI NIVAS, PANDANAD VADAKKUM MURI, PANDANAD VILLAGE, CHENGANNUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.6.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1947 of 2009 -------------------------------------- Dated this the 22nd day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Chengannur in C.C.No.76 of 2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”), on a complaint preferred by respondent No.1. According to respondent No.1, petitioner borrowed Rs.80,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 3.1.2005. That cheque was dishonourd for insufficiency of funds as proved by Ext.P2. Respondent No.1 issued notice to the petitioner on 10.1.2005 intimating dishonour and demanding payment of the amount. Notice was served on him on 11.1.2005. Since petitioner did not pay the amount complaint was preferred. Issue and service of notice on petitioner are proved by Exts.P3 to P5. Findings of the courts below as to the cause of dishonour and issue and service of notice on petitioner are not under challenge. Crl.R.P.No.1947/2009 2 3. Respondent No.1 gave evidence regarding the transaction and execution of the cheque as PW1. Petitioner did not dispute his liability to respondent No.1 or the issue of cheque. He only said that he is prepared to repay the amount as and when he obtained a loan. Courts below found in favour of due execution of the cheque and convicted him. 4. It is contended in the revision that finding of the courts below as to the due execution of the cheque is not correct. That contention cannot stand since petitioner himself did not dispute his liability or the execution of cheque and only expressed his inability to pay the amount until he obtained a loan. Respondent No.1 has given evidence regarding the transaction and execution of the cheque. It is not shown that evidence of respondent No.1 is unreliable. Moreover, petitioner also did not reply to the notice served on him. In these circumstances there is little reason to interfere with the direction for payment of compensation and the default sentence. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and to pay Rs.80,000/- as compensation to respondent No.1 under Section 357(3) of the Code of Criminal Procedure. In case of failure to deposit compensation, he was directed to undergo simple imprisonment for two months. Appellate court did not interfere with the sentence. Having regard to the nature of offence, amount involved and the object of legislation there is little reason to interfere with the compensation awarded to respondent No.1. 6. Learned counsel submitted that pursuant to the warrant issued by Crl.R.P.No.1947/2009 3 the learned magistrate petitioner was arrested on 19.6.2009 and is undergoing imprisonment in the Sub Jail, Kollam since then onwards. Learned counsel pleaded for leniency in the matter of sentence and requested that petitioner may be granted five months' time to deposit compensation in the trial court. Petitioner, as submitted by learned counsel is a peon in the Revenue Department. He is undergoing imprisonment from 19.6.2009 onwards. Offence proved against him does not have any moral turpitude. Hence I am inclined to think that imprisonment already undergone by the petitioner is sufficient in the ends of justice. Considering the request and circumstances stated by learned counsel, I am inclined to grant four months' time to the petitioner to deposit compensation in the trial court. 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 four months' time from today to deposit the 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 payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 Crl.R.P.No.1947/2009 4 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the aforesaid time. iv. Petitioner shall be released from jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Sub Jail, Kollam. v. Petitioner shall appear in the trial court on 24.10.2009 in case compensation as aforesaid is not paid within the said period. THOMAS P.JOSEPH, Judge. cks