IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.Rev.Pet.No. 2304 of 2009 ------------------------------ CRA.643/2007 of ADDL.SESSIONS COURT (ADHOC-I), KOTTAYAM ST.24/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- V.N.SOMAN, VALIYAVEETTIL HOUSE, PALLOM, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.K.REJI, PUTHUVAL, PALLOM, KOTTAYAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2304 of 2009 --------------------------------------- Dated this 16th day of July 2009 ORDER Notice to respondent No.2 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.1. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Changanacherry in S.T.No.24 of 2007 for offence punishable under section 138 of the Negotiable Instruments Act. Petitioner was found guilty, convicted and sentenced to undergo simple imprisonment for three months. He was directed to pay Rs.25000/- as compensation to respondent No.2 and in default of payment to undergo simple imprisonment for one month. Learned Sessions Judge (Adhoc-1), Kottayam confirmed that conviction, direction for payment of compensation and default sentence but modified substantive sentence as simple imprisonment till rising of the court, in criminal appeal No.643 of 2007. 3. According to respondent No.2, petitioner issued Ext.P1, cheque dated 25-02-2004 for discharge of a legally enforceable debt/liablitiy. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.2 issued notice to the petitioner intimating dishonour and demanding payment of the Crl.R.P.No.2304 of 2009 2 amount. Inspite of serving intimation about the notice it was not claimed by petitioner and hence it was returned as unclaimed. Issue of notice and its return as unclaimed are proved by Exts.P4 to P6. Courts below found that there was due service of intimation on the petitioner, he failed to claim the notice and that amounted to deemed service of notice. 4. So far as execution of the cheque is concerned case of petitioner is that he had shown the house of respondent No.2 to certain persons who came to borrow money, those persons borrowed money from the father of respondent No.2 but failed to return. Thereon respondent No.2 obtained signed blank cheque from petitioner. That case was not believed by the courts below. I have gone through the judgments under challenge. It is not disputed that Ext.P1 is signed by petitioner and drawn on his account. Respondent No.2 in his evidence as PW1 denied the suggestion of petitioner as above stated. There is no evidence or circumstance to prove or probabilise that the cheque came to possession of respondent No.2 in the manner suggested by petitioner. That, he refused to claim the notice inspite of intimation indicated that he was aware of the claim being made on behalf of respondent No.2. Courts below have considered the evidence in the light of contention raised by the petitioner and found in favour of due execution of the cheque. I find no reason to interfere with that finding. Crl.R.P.No.2304 of 2009 3 5. Substantive sentence is modified by the appellate court. Direction for payment of compensation and default sentence are legal and proper and required no interference. 6. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. He stated that petitioner is running a STD booth and is unable to raise the amount immediately. Considering the circumstances stated by learned counsel, petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit compensation as ordered by the courts below. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. 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/