IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH MAY 2010 / 16TH VAISAKHA 1932 Crl.Rev.Pet.No. 1491 of 2010() ------------------------------ CRA.342/2008 of SESSIONS COURT, KASARAGOD CC.336/2008 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED. -------------------------------------------------------- B.M.BABU, S/O.LATE BALLU, POOMANA COMPOUND,KUNJATHUR P.O., MANJESHWAR, KASARAGOD. BY ADV. SRI.CIBI THOMAS RESPONDENTS/COMPLAINANT & STATE. ---------------------------------------------- 1. H.RAMA, S/O.LATE KRISHNA,SHIVAKRIPA SHIVAPAL, NEAR KEERTHESHWAR TEMPLE, MANJESWAHR P.O., KASARAGOD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYASURYA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.R.P.No.1491 of 2010 --------------------------------------- Dated this 06th day of May, 2010 ORDER Learned Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Kasaragod for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”) in C.C.No.336 of 2008 of the court of learned Chief Judicial Magistrate, Kasaragod. That case arose on a complaint preferred by respondent No.1 alleging that for settlement of the housing loan petitioner borrowed Rs.1,25,000/- from him in September, 2007 and issued cheque dated 01-03-2008 for the discharge of that liability. The dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of statutory notice on the petitioner intimating dishonour and demanding payment of the amount is proved by Exts.P3 and P4. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, himself and respondent No.1 are school masters, were intimate friends and while so on 12-05-2005 he borrowed Rs.35,000/- from respondent No.1 and gave demand promissory note executed by his wife as security. Two demand promissory notes executed by petitioner and Crl.R.P.No.1491 of 2010 : 2 : three signed blank cheques from him were also taken by respondent No.1 in connection with that transaction. In August 2005 petitioner availed a loan of Rs.50,000/- from Vijaya bank and gave Rs.30,000/- to respondent No.1. There was a further payment of Rs.10,000/- also to respondent No.1. In spite of all these, respondent No.1 had filed a false complaint. Petitioner gave evidence as DW1 and proved Exts.D1 to D3(a). Courts below were not impressed by the contention raised by petitioner, found in favour of due execution of the cheque and that petitioner failed to rebut the presumption under section 139 of the Act. Learned counsel for petitioner contends that there is no reliable evidence for the alleged execution of the cheque. Respondent No.1 did not even say when actually the cheque was issued and further, evidence of DW1 and Exts.D1 to D3(a) is sufficient to disprove the case pleaded by respondent No.1. It is also the contention of learned counsel that though the hand writing in Ext.P1, cheque is different that was not even adverted to by the courts below. 3. It is not disputed that Ext.P1 is the cheque drawn by petitioner on his account and is signed by him. It is also not disputed that the said cheque was given to respondent No.1 by the petitioner himself though according to him, in connection with the borrowing of Rs.35,000/- on 12-05-2005. So far as Ext.D1 is Crl.R.P.No.1491 of 2010 : 3 : concerned, it only revealed that petitioner had availed a loan of Rs.50,000/- from Vijaya bank in August 2005 but, apart from what petitioner stated as DW1 there is nothing on record to show that any amount was paid to respondent No.1. Ext.D3 is the complaint preferred by petitioner before the DYSP against respondent No.1 and Ext.D3(a) is the acknowledgment signed by the DYSP for receipt of that complaint. But there is no evidence to show that any enquiry or investigation was conducted in the allegation made in Ext.D3 and any action was taken against respondent No.1. What remained is Ext.D2, sale deed No.1074 of 2006 executed by petitioner in favour of respondent No.1 in respect of 5 cents belonging to the former. That sale was effected on 20-03-2006 but, there is nothing on record to connect the sale as per Ext.D2 with Ext.P1, cheque and the transaction pleaded by respondent No.1 in September 2007. Petitioner, it is not disputed is a school teacher working with respondent No.1 and even as per his version, they were in intimate terms. Petitioner has not produced any document to show payment of amount to respondent No.1. I am also bear in mind that in spite of being served with statutory notice demanding payment of Rs.1,25,000/- based on the dishonour of the said cheque petitioner kept mum without any reply, a conduct which is not reasonably expected from a person like petitioner. Crl.R.P.No.1491 of 2010 : 4 : 4. Yet another contention is that it is not stated when actually the cheque was issued but, respondent No.1 has the case that transaction was in September 2007 and for the discharge of the liability cheque dated 01-03-2008 was issued. So far as section 138 of the Act is concerned, what is to be pleaded and proved is factum of issue of cheque and its dishonour. The so called difference in the hand writing in Ext.P1 is of no consequence since respondent No.1 has no case that petitioner filled up the cheque in his presence. He only said that petitioner gave the cheque dated 01-03-2008 for Rs.1,25,000/-. Courts below considered the evidence and found in favour of due execution of the cheque. I do not find any infirmity in that finding requiring interference in revision. Petitioner was not successful in rebutting the presumption under section 139 of the Act. 5. Learned Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for one year and payment of fine of Rs.1,30,000/- with a default sentence of imprisonment for six months. It was directed that if the said amount is realised Rs.125,000/- will be given to respondent No.1 as compensation. Appellate court while confirming the sentence of fine modified the substantive sentence as imprisonment for ten days. Learned counsel contends that sentence awarded is excessive and requested Crl.R.P.No.1491 of 2010 : 5 : that since the conviction is not being interfered by this court the sentence of fine may be modified as compensation payable to respondent No.1 directly and, petitioner may be granted six months' time to do so. Learned counsel highlighted the difficulties being experienced by petitioner on account of lack of sufficiency of funds. 6. Having regard to the nature of offence and the amount involved I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. Learned Chief Judicial Magistrate directed that out of the fine if realised, Rs.1,25,000/- will be given to respondent No.1 as compensation. Having regard to the facts and circumstances of the case, I am inclined to modify that part of the sentence as a direction for payment of Rs.1,25,000/- to respondent No.1 as compensation. Considering the circumstances stated by learned counsel, petitioner is granted three months' time to pay/deposit the compensation. 7. I have dispensed notice to respondent No.1 in view of the order I proposed to pass in this revision petition which is not prejudicial to him. Resultantly this revision petition is allowed in part while retaining the conviction of petitioner as confirmed by the learned Crl.R.P.No.1491 of 2010 : 6 : Sessions Judge, Kasaragod, sentence awarded to him is modified in the following lines: (i) Substantive sentence of imprisonment awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii)The sentence of fine of Rs.1,30,000/- is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1 within three months from this day Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand Only) by way of compensation. In case of failure petitioner shall undergo simple imprisonment for six months. (iii)It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the amount 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 (iv)petitioner shall appear in the trial court on 10- 08-2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. (THOMAS P JOSEPH, JUDGE) Sbna/-