IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 1514 OF 2008() ---------------------------------------------- CRA.445/2006 OF ADDL. SESSIONS COURT, THRISSUR ST.54/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- JOHNSON, S/O.THOTTIYAN LONAKUTTY MASTER, CHENGALUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. MATHEW, S/O.MECHERI POULOSE, VELUPPADAM DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.M.KRISHNAKUMAR BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1514 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- Respondent No.1 filed a complaint against the petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). His case is that petitioner borrowed Rs.55,000/- from him during the first week of January, 2004 and for the discharge of that liability issued Ext.P1, cheque dated 15.10.2004 which on presentation was dishonoured for insufficiency of funds as proved by Ext.P2 and in spite of service of statutory notice (proved by Exts.P3 to P5) Petitioner did not pay the amount. Respondent No.1 gave evidence as P.W.1 and testified to his case. Contention of the petitioner is that he had borrowed only Rs.30,000/- from respondent No.1 and at that time a signed blank cheque was given as security. Though he repaid the said amount, respondent No.1 did not return the cheque. Learned counsel for petitioner contends that conviction of the petitioner is not proper since there is no acceptable evidence as to the execution of the cheque. 2. That Ext.P1, contained signature of the petitioner and himself had handed over that cheque to respondent No.1 are not very CRL. R.P. No.1514 of 2008 -: 2 :- much in dispute. Though according to petitioner he had borrowed only Rs.30,000/- and a signed blank cheque was given in that regard, what is available in that regard is only the suggestion made by the petitioner to respondent No.1 which the latter denied. It is also pertinent to note that petitioner did not reply to the notice served on him. Nothing is brought out to disbelieve the evidence of respondent No.1 as to the transaction and execution of the cheque. It is difficult to believe that petitioner gave a signed blank cheque and in spite of a claim for a larger amount, he did not think it necessary to reply to the statutory notice. In the above circumstances courts below are justified in finding that the petitioner issued the cheque for the legally enforceable debt/liability and failed to rebut the presumption under Sec.139 of the Act. Therefore the conviction of petitioner requires no interference. 3. Trial court sentenced the petitioner to undergo simple imprisonment for three months and payment of compensation of Rs.55,000/-. Appellate court modified the sentence to simple imprisonment for one day and compensation was converted as fine. In the facts and circumstances I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. Fine awarded CRL. R.P. No.1514 of 2008 -: 3 :- is converted as compensation payable to respondent No.1. 4. At this stage counsel for petitioner requested three months' time to deposit the compensation. Considering the relevant aspects, the amount involved and circumstances stated by the counsel, I am inclined to grant time as requested by the counsel. Resultantly, revision is allowed in part in the following lines: (i) Substantive sentence awarded by the court below is modified as simple imprisonment till rising of the court. (ii) Fine awarded by the appellate court is converted as compensation of Rs.55,000/- (Rupees Fifty five thousand only) to be deposited by the petitioner in the trial court within three months from this day for payment to respondent No.1 under Sec.357(3) of the Code of Criminal Procedure. In case of default, petitioner shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of the direction for deposit of compensation if petitioner paid the 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 compensation within the said period three months. Petitioner shall appear in the trial court on 28.8.2009 to receive CRL. R.P. No.1514 of 2008 -: 4 :- the sentence. Criminal Miscellaneous Petition No.4561 of 2008 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv