IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.Rev.Pet.No. 485 of 2003() ----------------------------- CRA.135/2001 of SESSIONS COURT, THODUPUZHA CC.621/1996 of JUDL. FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ M.M.JOSEPH, MARUTHUMKUZHIYIL HOUSE, EZHUKUMVAYAL, KALKOONTHAL VILLAGE. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. SIBICHAN @ SIBI, MUTHUPLACKAL VEEDU, EXHUKUMVAYAL, KALKOONTHAL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.RAJKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL. M.P. NO: 1708/03 IN CRL. R.P.NO: 485 OF 2003 DISMISSED: 3/9/2008 SD/- THOMAS P. JOSEPH JUDGE jj /TRUE COPY/ P.A. TO JUDGE THOMAS P. JOSEPH, J. ------------------------------- CRL. R.P. No. 485 OF 2003 ------------------------------- Dated this the 3rd September, 2008. O R D E R Alleging illegality, irregularity and impropriety in the proceedings and judgments of the courts below, the accused has prepared this revision petition. 2. At the time the revision petition was taken up for hearing, counsel for the first respondent was not available. Shri. Nandagopal, learned counsel appearing for the petitioner submitted that at the time the revision petition was admitted, there was a conditional order dated 27.3.2003 to deposit one half of the cheque amount, the time for payment of which was later extended on application. But thereafter, the petitioner has not turned up. Learned counsel also submitted that in spite of sending a registered notice to the petitioner, he has not responded. Learned counsel brought to my notice Rule 174 of the Kerala High Court Act and Rules and submitted that notice to the petitioner personally may be required. On going through Rule 174, I find that the said provision is concerning service of notice at the time of admission of the CRL.R.P.NO: 485/03 2 proceedings unlike in the case on hand where the petitioner was represented by a counsel. Hearing the parties or counsel in revision is also optional, as stated in Section 403 of the Code of Criminal Procedure. 3. The first respondent filed complaint in the Judicial First Class Magistrate's Court, Nedumkandam alleging that the petitioner purchased fertilizers and pesticides from him for Rs.36,549.90 on credit, on his demanding payment of the said amount the petitioner issued Ext.P1, cheque dated 15.3.1996 which was dishonoured for insufficiency of funds and that in spite of notice dated 7.8.1996 intimating the dishonour and demanding payment of the amount and its service on the petitioner on 13.8.1996, he did not favourably respond. 4. In the trial court, the first respondent gave evidence as PW1 and proved Exts.P1 to P5. The Learned Magistrate found that the petitioner was guilty of the offence under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for four months. Aggrieved, the petitioner preferred appeal in the Sessions Court, Thodupuzha. Learned Sessions Judge allowed the appeal (Criminal Appeal CRL.R.P.NO: 485/03 3 135/01) in part confirming the conviction but modifying the sentence of simple imprisonment as two months with direction for payment of compensation of Rs.27,000/- to the first respondent. It is against the said judgments that the petitioner has preferred this revision. 5. It is contended in the revision petition that the courts below ought to have found that the petitioner had discharged the liability towards the first respondent and that the sentence awarded is excessive. So far as the first contention is concerned, it came out in the cross examination of the first respondent (PW 1) that in the course of the proceedings the petitioner had paid Rs.5,000/- towards the debt the receipt of which was not disputed by the first respondent also. In fact it is noticing the said payment that the Learned Sessions Judge directed the revision petitioner to pay compensation of Rs.27,000/- though the amount covered by the cheque is Rs.30,549.90. 6. It is proved that the petitioner issued the cheque in question. In fact, his contention was that he had given signed blank cheque as security at the time of transaction. The first respondent as PW1 has given evidence as to the due execution of the cheque. CRL.R.P.NO: 485/03 4 That, the petitioner had transaction with the first respondent is practically admitted in the cross examination of the first respondent (PW1). In the circumstances, there is no reason to interfere with the concurrent finding of fact entered by the courts below regarding the execution of the cheque. The petitioner having failed to rebut the presumption under Section 139 of the Act, conviction is legal and proper. 7. Now coming to sentence part of the judgment of the appellate court, the contention is that it is excessive. Considering the nature of the offence and taking into account that though belatedly during the course of the proceedings in the Court of Judicial First Class Magistrate, Nedumkandom the petitioner had paid Rs.5,000/- at least to the first respondent, I am inclined to think that simple imprisonment till the rising of the Court will serve the purpose. At the same time, there is no reason to interfere with the direction for payment of compensation to the first respondent. 8. It is seen that no default clause is provided in case of non- payment of compensation. Going by the decision in Ganga v. Lakshmi Ammal {2008(2) KLT 306} it is permissible to impose default clause for non-payment of compensation. Hence, it is only CRL.R.P.NO: 485/03 5 appropriate that default sentence is imposed for non-payment of the compensation. The revision petition is allowed in the following lines:- a) Sentence awarded to the petitioner is modified as simple imprisonment till the rising of the Court. b) Direction for payment of compensation of Rs.27,000/- (Rupees twenty seven thousand only) to the first respondent is confirmed. c) In case the petitioner did not deposit the said amount in the Trial Court within two months from this day, he shall undergo simple imprisonment for one month. d) Conviction of the petitioner under Section 138 is confirmed. The petitioner shall appear in the Judicial First Class Magistrate's Court, Nedumkandom on 3rd November, 2008 to receive the sentence. THOMAS P. JOSEPH JUDGE jj