IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 2590 of 2009() ------------------------------ CRA.53/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.33/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------- ILLATHUKANDI VELAYUDHAN, S/O.INNIAPPAN, ILLATHUKANDI HOUSE, PULPATTA PO, POOKOLATHUR, MALAPPURAM DIST. BY ADV. SRI.SAJU.S.A RESPONDENTS/COMPLAINANT & STATE: --------------------------------- 1. K.ABDUL SAMAD, S/O.POCKER, NAMBIMADATHIL HOUSE, NARUKARA PO, PATTARKULAM MANJERI. 2. STATE OF KERALA, REP.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 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2590 of 2009 --------------------------------------- Dated this 11th 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 Additional Sessions Judge, Adhoc-III, Manjeri in criminal appeal No.53 of 2008 confirming conviction but setting aside the order for payment of compensation passed by learned Judicial Magistrate of First Class-2, Manjeri in C.C.No.33 of 2006 for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.40000/- from him on 10-10-2002 and issued Ext.P1, cheque dated 10-10-2002 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 series and P6. Respondent No.1 gave evidence as PW1 and stated to his case. Case of the petitioner as spoken through his witness, DW1 is that there was an agreement between DW1 and respondent No.1 as per which DW1 sold his bullet motor cycle to respondent No.1 on 14-08-2002 for Rs.25000/-. Petitioner was the broker in that transaction. Respondent No.1 did not pay the sale consideration. Crl.R.P.No.2590 of 2009 2 Hence petitioner had to give his cheque to DW1. On that security the motor cycle was given to respondent No.1. Respondent No.1 failed to pay the amount. Thereon, DW1 repossessed the vehicle. Respondent No.1 demanded the cheque given by petitioner. To get back the motor cycle DW1 gave the cheque (given by petitioner) to respondent No.1. That cheque was misused. Courts below did not accept the evidence of DW1 and found in favour of due execution of the cheque. That finding is under challenge in this revision. 3. It is true that petitioner has a different version as to how else the cheque happened to be in the custody of respondent No.1. But respondent No.1 denied that case. There is no evidence to show that there was any such vehicle transaction between DW1 and respondent No.1 or that it was in connection with that transaction that the cheque drawn by petitioner came to respondent No.1 through DW1. Apart from what DW1 has stated there is no evidence in support of that case. It is seen from Exts.P5 and P6 that inspite of giving intimation about the registered notice sent on behalf of respondent No.1, petitioner did not claim it. That indicated that petitioner is aware of the claim made by respondent No.1. There is no reason to disbelieve the evidence of respondent No.1. On going through the judgment under challenge and hearing learned counsel I find no reason to differ from the finding regarding execution of the cheque. Crl.R.P.No.2590 of 2009 3 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There was also a direction for payment of compensation of Rs.40000/- to respondent No.1 and default sentence of imprisonment for fifteen days. Appellate court confirmed the substantive sentence but set aside the direction for payment of compensation on the ground that in so far as remedy of respondent No.1 to recover the amount by way of Civil suit remained it cannot be said that respondent No.1 has been put to loss. It is contended by learned counsel that sentence awarded to the petitioner is excessive. 5. Having regard to the nature of offence and amount involved I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time, respondent No.1 who suffered loss on account of the act of petitioner in causing dishonour of the cheque has to be compensated. Courts are empowered to award compensation and in enforcement of that, to order default sentence. Section 357(4) of the Code of Criminal Procedure enables revisional court also to award compensation. In this case learned Additional Sessions Judge has set aside the order for payment of compensation on unsustainable ground and not following the decision of this court as to the necessity for awarding compensation following conviction for offence under section 138 of the Crl.R.P.No.2590 of 2009 4 Act. On the facts and circumstances of the case, I am satisfied that it is a fit case where petitioner should pay compensation of Rs.40000/- to respondent No.1. 6. Learned counsel requested that petitioner may be granted five months' time to deposit compensation. According to learned counsel petitioner is unable to raise the amount immediately on account of financial difficulties. Having regard to the circumstances stated by learned counsel I am inclined to grant time till 11-01-2010 for deposit of 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 directed to deposit in the trial court for payment to respondent No.1 Rs.40000/-(Rupees Forty Thousand Only) by way of compensation on or before 11-01-2010 failing which petitioner has to undergo simple imprisonment for one month. 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 respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the period aforesaid. Crl.R.P.No.2590 of 2009 5 4. Petitioner shall appear in the trial court on 12-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 12-01-2010. THOMAS P JOSEPH, JUDGE Sbna/