IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 2463 of 2009() ------------------------------ CRA.338/2007 of SESSIONS COURT, THODUPUZHA ST.77/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------- K.T.RAJAN,KALOOPARAMBIL HOUSE, KUMARAMANGALAM VILLAGE,THODUPUZHA TALUK. BY ADV. SRI.R.RANJITH SRI.V.V.RAJA RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. E.K.JOHN,ELLICKAL HOUSE,KOLANI KARA, THODUPUZHA VILLAGE,THODUPUZHA TALUK. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2463 of 2009 --------------------------------------- Dated this 05th day of August 2009 ORDER 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 him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Thodupuzha in criminal appeal No.338 of 2007 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner issued a cheque for the discharge of liability, that cheque was dishonoured for insufficiency of funds and since petitioner did not pay the amount inspite of dishonour intimation and demand, he filed S.T.No.8 of 2006 against petitioner. When that case was pending the matter was settled between the parties outside court. As per that settlement petitioner was to pay Rs.1,00,000/- to respondent No.1 and for payment of that amount petitioner issued Ext.P1, cheque dated 30-10-2006. Consequent to that settlement S.T.No.8 of 2006 was withdrawn. That cheque also was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 served statutory notice on petitioner as seen from Exts.P4 to P6. Ext.P7 is the copy of deposition of respondent No.1 as PW1 in S.T.No.8 Crl.R.P.No.2463 of 2009 2 of 2006. Petitioner claimed that entire liability was settled and S.T.No.8 of 2006 was withdrawn. One of signed blank cheques which was in the custody of respondent No.1 was misused and the present complaint is preferred. Petitioner examined a witness, DW1. He stated that settlement was in the presence of a lawyer. He claimed that the entire liability was settled. Courts below were not inclined to accept the evidence of DW1 and found petitioner guilty. It is contended that due execution of cheque is not proved. 3. Case of petitioner is that he had given signed blank cheques to respondent No.1, one of which was misused even after settlement of S.T.No.8 of 2006. But it came out in the evidence of DW1 that settlement was in the presence of lawyer. Courts below observed that apart from the cheque which is the subject matter of S.T.No.8 of 2006, another cheque also was in the custody of respondent No.1, that cheque would have been taken back or at any rate necessary endorsement obtained from respondent No.1 regarding that cheque. There is no reliable evidence to show that any cheque was in the custody of respondent No.1 even before S.T.No.8 of 2006 was settled. It is also relevant to note that petitioner did not reply to the statutory notice served on him. Courts below assessed the evidence and found in favour of due execution of the cheque. I find no reason to differ. Crl.R.P.No.2463 of 2009 3 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There is also a direction for payment of compensation of Rs.105000/- to respondent No.1 and in case of failure to undergo simple imprisonment for three months. It is submitted by learned counsel that sentence awarded is excessive. He requested that petitioner may be granted six months' time to deposit compensation since according to him petitioner is in financially difficult situation. 5. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation or default sentence at the instance of petitioner. Petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 30-12-2009 to deposit compensation as ordered by learned Magistrate. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and Crl.R.P.No.2463 of 2009 4 respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. 4. 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 Sbna/