IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2472 of 2009() ------------------------------ CRA.415/2007 of II ADDL. SESSIONS COURT, KOLLAM CC.1885/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KARUNAGAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- VASUMATHY, W/O. BALAKRISHNAN, K.V.BHAVANAM, PRAYAR SOUTH, CLAPPANA, KARUNAGAPPALLY. BY ADV. SRI.K.R.SUNIL RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------- 1. K.V.SREEDHARAN, MANDANATHU VEETTIL, PRAYAR NORTH, CLAPPANA VILLAGE, KARUNAGAPPALLY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2472 of 2009 -------------------------------------- Dated this the 4th 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. Public Prosecutor takes notice for respondent No.2. 2. Concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of legally enforceable debt/liability is under challenge in this revision. Petitioner faced trial in the court of learned Judicial First Class Magistrate, Karunagappally in C.C.No.1885 of 2003 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Her conviction was confirmed but sentence was modified by the learned Additional Sessions Judge-II, Kollam in Crl.Appeal No.415 of 2007. According to respondent No.1, petitioner borrowed Rs.1,50,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 5.6.2003. That cheque was dishonoured for insufficiency of funds as seen from Exts.P2 to P4. Service of statutory notice on petitioner is proved by Exts.P5 to P7. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, she had borrowed Rs.10,000/- from respondent No.1 on an agreement to pay interest and gave signed blank cheque which has been misused by respondent No.1. It is contended by learned counsel that concurrent findings entered by Crl.R.P.No.2472/2009 2 the courts below are erroneous. 3. It is not disputed that Ext.P1 contained the signature of petitioner and that the cheque is drawn on the account maintained by her. Though petitioner contended that she had borrowed Rs.10,000/- and given signed blank cheque, there is no evidence or circumstance to prove or probabilise that contention. Petitioner has not replied to the statutory notice served on her. There was nothing to disbelieve the evidence of respondent No.1. The finding regarding due execution of the cheque entered by the courts below in the said circumstances required no interference. Petitioner has failed to rebut the presumption under Section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. There was a direction for payment of compensation of Rs.1,50,000/- and in default of payment to undergo simple imprisonment for one month. Learned Additional Sessions Judge while modifying the substantive sentence as simple imprisonment till rising of the court converted compensation as fine of Rs.1,50,000/- and provided default sentence of imprisonment for two months. 5. Learned counsel requested that fine may be converted as compensation payable directly to respondent No.1. Learned counsel also requested that petitioner may be granted six months' time to deposit compensation in the trial court since according to learned counsel, petitioner is unable to raise the amount immediately on account of financial difficulties. Having regard to the facts and circumstances and also taking into account the direction issued by the learned magistrate I am inclined to think that the fine can Crl.R.P.No.2472/2009 3 be converted as compensation payable to respondent No.1. Considering the circumstances stated by learned counsel petitioner is granted time till 30.12.2009 to deposit the compensation in the trial court. In case of non- payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside and instead, petitioner is directed to deposit Rs.1,50,000/- (Rupees One lakh and fifty thousand only) for payment to respondent No.1 by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner has to undergo simple imprisonment for a period of three months. ii. 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 her 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 above said time. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks