IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2773 of 2009() ------------------------------ CRA.180/2008 of SESSIONS COURT, KASARAGOD CC.91/2008 of JFCM-II KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.NARAYANAN, S/O.KANNAN, PALLATHINGAL HOUSE, KUTTIKOL POST AND VILLAGE, KASARGODE TALUK AND DISTRICT. BY ADV. SRI.C.K.PRASAD RESPONDENT(S): COMPLAINANT -------------------------- 1. SHYAMA BHATT.P., D/O.THIMMAPPAYYA, PALTHADKA HOUSE, ADYA NADKA POST, ENNKAJE VILLAGE, KASARGODE TALUK AND DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.S. HRITIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2773 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009 O R D E R This revision petition is filed challenging judgment of learned Sessions Judge, Kasaragod in Crl. Appeal No.180 of 2008 confirming conviction but modifying the sentence of the petitioner in CC No.91 of 2008 of the Court of learned Judicial Magistrate of First Class -II Kasaragod for offence punishable under section 138 of the Negotiable Instruments Act(for short, “the Act”). According to respondent No.1, petitioner issued Ext.P1, cheque dated 31.3.2007 for Rs.1,60,000/- for discharging of the debt due to him. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 and P5. Respondent No.1 gave evidence as PW1. He stated that himself and petitioner were engaged in contract work and that Rs. 1,60,000/- was due to him from the petitioner. For payment of that amount petitioner issued Crl.R.P. No.2773 of 2009. : 2 : the cheque. Petitioner contented that his signed blank cheque was misused. It is contented by learned counsel that the due execution of the cheque is not proved. It is also contented that there is no evidence show that any amount is due to respondent No.1. 2. Respondent No.1 in his evidence as PW1 stated that Rs.1,35,000/- was given to the petitioner in the year 2003. At that time, petitioner had given him a cheque for the said amount. Latter, that cheque was taken back by the petitioner and Ext.P1 was given to him in the year 2005 for the amount due with interest payable as agreed upon by the parties. Petitioner was not able to discredit that evidence of respondent No.1. Petitioner has not explained in what circumstance he gave signed blank cheque to Respondent No.1. Further fact to be noted is that petitioner has not replied to the notice served on him. Courts below considered these circumstances and evidence and concluded and rightly, that petitioner issued the cheques in favour of respondent Crl.R.P. No.2773 of 2009. : 3 : No.1 for the discharge of debt/liability. Petitioner has failed to rebut the presumption under section 139 of the Act. As such conviction of petitioner does not require any interference. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There was also a direction for payment of compensation of 1,60,000/- to respondent No.1 and in default of payment to undergo Simple imprisonment for one month. Appellate court while confirming the direction of payment of compensation and default sentence modified the substantive sentence as simple imprisonment for 10 days. It is contended by learned counsel that substantive sentence imposed is excessive. Learned counsel requested six months time to deposit compensation since according to him petitioner on account of financial difficulties is unable to raise the amount immediately. Further request is that petitioner may permitted to pay compensation directly to the respondent No. 1. Considering the nature of the offence and object of legislation, I am satisfied that simple Crl.R.P. No.2773 of 2009. : 4 : 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. But since the substantive sentence is being modified as above and considering the amount involved I direct that in case of non payment of compensation petitioner has to undergo simple imprisonment for two months. Considering the circumstances stated by learned counsel the petitioner is granted time till 15.1.2010 to deposit the compensation. 5. I have dispensed with notice of respondent No.1 in view of the order I proposed to pass in the revisionm which is not prejudiced to respondent No.1. Resultantly this revision petition is allowed in part to the following extent. 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till raising of the court. 2. Petitioner is granted time till 15.1.2010 to deposit the Crl.R.P. No.2773 of 2009. : 5 : compensation in the trial court as ordered by the courts below. In case of default petitioner has to undergo simple imprisonment for two months. 3. It is directed that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No. 1 through his counsel in the Trial court and, respondent filed a statement in that court through his counsel acknowledging receipt of compensation within the aforesaid time. 4. Petitioner shall appear in the trial court on 18.1.2010 to receive the sentence 5. Until then execution of warrant if any against the petitioner will stand in abeyance ( THOMAS P JOSEPH, JUDGE) jma