IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2334 of 2009() ------------------------------ CRA.69/2008 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.416/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BABU, THOTTATHIL HOUSE, SACHIVOTHAMAPURAM, KURICHI. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.N.KARUNAKARAN, LIGI BHAVANAM, SACHIVOTHAMAPURAM, KURICHI. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2334 of 2009 -------------------------------------- Dated this the 23rd day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kottayam in Crl.Appeal No.69 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Changanachery in S.T.No.416 of 2007 on the allegation that he borrowed Rs.1,50,000/- from respondent No.2 and for repayment of that amount issued Ext.P1, cheque. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Statutory notice was served on petitioner as proved by Exts.P4 and P5 series. Respondent No.2 gave evidence as PW1 and testified to the transaction leading to the execution of cheque. Petitioner contended that he borrowed only Rs.10,000/- from respondent No.2 and gave signed blank cheque which has been misused. Courts below found that petitioner has not adduced evidence or bring out circumstance to prove or probabilise that contention. Nothing is brought out to disbelieve the evidence of Crl.R.P.No.2334/2009 2 respondent No.2 regarding the transaction and execution of the cheque. Petitioner did not also reply to the statutory notice served on him. In these circumstances, finding regarding execution of cheque for discharge of a legally enforceable debt/liability required no interference. Petitioner has failed to rebut the presumption under Section 139 of the Act . 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. There was a direction for payment of compensation of Rs.1,50,000/- to respondent No.2 with default sentence of imprisonment for one month. Appellate court modified the sentence as simple imprisonment till rising of the court and fine of Rs.1,50,000/- with default sentence of imprisonment for six months. It was also directed that fine if realised will be paid to respondent No.2 as compensation. 4. Learned counsel requested that fine may be converted as compensation payable to respondent No.2 directly and that since petitioner is placed in financially difficult situation, he may be granted six months’ time to deposit compensation. 5. Considering the nature of offence and the object of legislation, I am inclined to think that imprisonment as ordered by the appellate and compensation payable to respondent No.2 is sufficient in the ends of justice. Considering the financial difficulty of petitioner expressed by the learned counsel, petitioner is granted time till 30.12.2009 to deposit compensation. Crl.R.P.No.2334/2009 3 Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.1,50,000/- (Rupees one lakh fifty thousand only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009. In case of failure, petitioner has to undergo simple imprisonment for six months. ii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31.12.2009. THOMAS P.JOSEPH, Judge. cks