IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2425 of 2009 ------------------------------ CRA.687/2008 of ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC III), NORTH PARAVUR CC.1442/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- K.X.SEBASTIAN, S/O.XAVIER, AGED 43 YEARS, KURISINGAL HOUSE, S.L.PURAM P.O., ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS/RESPONDENT/COMPLAINANT & STATE: ---------------------------------- 1. A.MAJEED KOSHY, S/O.T.M.ALIYAR, THACHAVALLATHU HOUSE, MASJID ROAD, THAIKKATTUKARA, ALUVA. 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 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2425 of 2009 --------------------------------------- Dated this 29th day of July 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. Petitioner is aggrieved by concurrent finding entered by the courts below regarding due execution of a cheque for discharge of legally enforceable debt/liability. He was convicted by learned Judicial Magistrate of First Class-1, Aluva in C.C.No.1442 of 2004 for offence punishable under section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment for three months. There was also direction for payment of compensation of Rs.40000/- to respondent No.1. Sixty days' default sentence was also provided. Learned Additional Sessions Judge (Adhoc-3), North Paravur dismissed the criminal appeal No.687 of 2008. Hence this revision. It is contended that due execution of the cheque is not proved. 3. According to respondent No.1, petitioner borrowed Rs.40000/- from him and on his demand for repayment issued Ext.P1, cheque dated 22-02-2004. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Issue and service of notice on petitioner are not disputed, and proved by Exts.P4 to P6. Ext.P7 is the reply. Crl.R.P.No.2425 of 2009 2 Respondent No.1 gave evidence as PW1. Petitioner claimed that he had no transaction with respondent No.1 who is an utter stranger to him. He had given signed blank cheques to one Majeed one of which has been misused. Petitioner gave evidence as DW1 and stated so. According to him, the said Majeed filed a suit against him in the Sub Court, Paravur. Ext.D1 and D2 are copy of written statement filed by him and judgment in that suit. That suit ended in dismissal. Making use of one of the signed blank cheques given to said Majeed, one Mohammed Sali filed a complaint against him. He was acquitted in that case. Courts below were not inclined to accept the version of petitioner. According to learned counsel, courts below ought to have accepted the evidence of petitioner as DW1. 4. Though, petitioner denied acquaintance with respondent No.1 and claimed that he had no transaction with him, in Ext.P7, reply sent as per his instruction it is contended that himself and respondent NO.1 were partners and that, to enable respondent No.1 avail a loan he gave two cheques for Rs.20000/- and Rs.40000/-, six years back. Learned magistrate has observed that Ext.P7, notice is dated 30-05-2004 and if the version of petitioner in Ext.P7 that he gave the cheques to respondent No.1 six years back were to be accepted, the issuance of cheques must have been in the year 1998 but in Ext.D1, written statement petitioner's contention is that signed blank cheques Crl.R.P.No.2425 of 2009 3 were given to Majeed in the 1996. Apart from that discrepancy, Ext.P7 cuts at the root of the case pleaded by petitioner . Ext.P7 shows that he had issued the cheque in question to respondent No.1. Ext.P1, cheque is for Rs.40000/-, In the light of Ext.P7, courts below are justified in rejecting the contention and evidence of petitioner. There is no reason to interfere with the finding entered by the courts below regarding due execution of the cheque. Petitioner failed to rebut the presumption under section 139 of the Code. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay Rs.40000/- (Rupees Forty Thousand Only) as compensation to respondent No.1. It is submitted that sentence awarded is excessive. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. It is also requested that petitioner may be directed to pay compensation directly to respondent No.1. Considering the nature of offence I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. Petitioner is granted time till 30-12-2009 to deposit compensation. In case of default petitioner has to undergo simple imprisonment for three months. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple Crl.R.P.No.2425 of 2009 4 imprisonment till rising of the court. 2. Petitioner is granted time till 30-12-2009 to deposit compensation as ordered by learned magistrate. In case of failure petitioner has to undergo simple imprisonment for three months 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 the amount within the period aforesaid. 4. Petitioner shall appear in the trail court on 31-12-2009 to receive the sentence. Warrant if any issued against the petitioner will stand in abeyance till 31-12-2009. THOMAS P JOSEPH, JUDGE Sbna/