IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2011 of 2009 ------------------------------ CRA.548/2007 of ADDL.SESSIONS COURT, KOTTAYAM CC.646/2005 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER/(APPELLANT/ACCUSED): ---------------------------------------- V.VIJAYAKUMAR,S/O.VISWANATHAN,PROPRIETOR SREE MURUGAN TRADERS,SABAPATHY KOVIL STREET, CHALAI,THIRUVANANTHAPURAM. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT/(RESPONDENTS/COMPLAINANT & STATE): ----------------------------------------------- 1. BIJU THOMAS,S/O.THOMAS,THAIYIL HOUSE, PROPRIETOR,ST.GEORGE OIL MILL,ERATTUPETTA, KOTTAYAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009 ALONG WITH CRL.R.P.NO.2012 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2011 of 2009 & 2012 of 2009 --------------------------------------- Dated this 03rd day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in these revisions which is not prejudicial to him. Heard public prosecutor who took notice for respondent No.2. 2. These revisions arise from separate judgments of learned Additional Sessions Judge, Kottayam in criminal appeal No.548 of 2007 and 547 of 2007, respectively arising from common judgment of learned Judicial Magistrate of First Class, Erattupetta in C. C.Nos.646 of 2005 and 643 of 2005 involving offence punishable under Sec.138 of Negotiable Instruments Act. Petitioner faced trial in the trial court on complaints preferred by respondent No.1 on the allegation that petitioner owed money to him and for repayment of the amount issued the disputed cheques which were dishonoured for insufficiency of funds. In spite of Crl.R.P.No.2011 2 serving statutory notice to the petitioner intimating dishonour and demanding payment of the amount, petitioner did not pay the amount. Hence the complaints. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P16. Petitioner gave evidence as DW1 and examined a witness as DW2. Ext.D1 was marked on his side. Courts below after consideration of the evidence found in favour of due execution of the cheques. It was also found that the cheques were dishonoured for insufficiency of funds and that inspite of service of statutory notice petitioner failed to pay the amount. Accordingly he was convicted as stated above. 3. So far as cause of dishonour and issue and service of statutory notice are concerned there is no challenge before me and the same are proved by the relevant dishonour memos and copy of notice, postal receipts and acknowledgment cards signed by petitioner. 4. So far as execution of the cheques are concerned, respondent No.1 gave evidence as PW1. In C.C.No.646 of 2005, Crl.R.P.No.2011 3 the amount involved is Rs.125000/- and in C.C.No.643 of 2005 the amount covered by the cheque is Rs.26865/-. According to respondent No.1, petitioner owed the said amounts to him and for repayment issued the cheques. He stated that petitioner purchased coconut oil from him and for the amount due, issued the cheques. Contention raised by the petitioner is that as per agreement between him and respondent No.1, latter used to supply coconut oil at his business place and on such occasions, he used to give cheques for the amount due. Once there was a complaint that coconut oil supplied by respondent No.1 was adulterated. Respondent No.1 thought that the scandal was spread by petitioner and on account of that enmity misused the cheques already given. He claimed that he did not owe any amount to respondent No.1. He produced Ext.D1, statement said to have been given by respondent No.1 regarding the transaction and the amount due. When that statement was put to respondent No.1, he denied giving any such statement. Learned magistrate observed that Ext.D1 does Crl.R.P.No.2011 4 not contain signature of the person who issued it and that Ext.D1 did not bind respondent No.1. DW2 is a witness examined by petitioner. He denied that he is 'Sunny' referred to Ext.D1. His evidence is not in any way helpful to respondent No.1. What remain is only evidence of petitioner as DW1. 5. So far as evidence of DW1 is concerned, he was not able to substantiate his case. He did not reply to the statutory notice served on him claiming the respective amounts. That would have been the first occasion for him to set up his defence. It is admitted by petitioner that he had business transaction with respondent No.1 and used to give cheques for amounts due from him. According to respondent No.1, the amount covered by the cheques are due to him. Petitioner does not dispute that the cheques are signed and drawn by him on the account maintained by him. He has also not disputed that he had given the cheques (Ext.P7 to P10) to respondent No.1. Courts below assessed the evidence to let in by both sides and held that petitioner issued the Crl.R.P.No.2011 5 cheques (Ext.P1, P7 to P10) in favour of respondent No.1 for discharge of liability. There is little reason to interfere with the concurrent finding of the fact in revision. 6. In C.C.No.646 of 2005 learned magistrate sentenced the petitioner to undergo simple imprisonment for four months and directed him to pay by way of compensation Rs.125000/- to respondent No.1. There was default sentence of imprisonment for four months. Learned Additional Sessions Judge modified the sentence as simple imprisonment till rising of the court, fine of Rs.125000/- and default sentence of imprisonment for two months. In C.C.No.643 of 2005, learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. There was also direction to pay compensation of Rs.26865/- and in default payment to undergo simple imprisonment for one month. In appeal sentence was modified as simple imprisonment till rising of the court, fine of Rs.26865/- and default sentence of imprisonment for one month. Crl.R.P.No.2011 6 7. Learned counsel requested that the fine awarded may be converted as compensation payable to respondent No.1 directly. He also requested that petitioner may be granted four months' time for payment of compensation since petitioner is facing financially difficult situation and is unable to raise the amount immediately. 8. Having regard to the nature of the offence and object of legislation I am satisfied that substantive sentence as modified by the appellate court and direction for payment of compensation is sufficient in the ends of justice. Considering the circumstances stated by the learned counsel petitioner is granted four months' time from today to deposit compensation. Resultantly these revisions are allowed in part to the following extent: (a) Crl.R.P.No.2011 of 2009 (i) while retaining the substantive sentence as modified by learned Additional Sessions Judge, sentence of fine is set aside. Instead, petitioner is directed to deposit in the Crl.R.P.No.2011 7 trial court for payment to respondent No.1 within four months from this day Rs.125000/- (Rupees One Lakh Twenty Five Thousand Only) as compensation failing which he shall undergo simple imprisonment for four months. (b) Crl.R.P.No.2012 of 2009 (ii) while retaining the substantive sentence as modified by the learned Additional Sessions Judge, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.26865/- (Rupees Twenty Six Thousand Eight Hundred and Sixty Five Only) by way of compensation within four months from this day failing which he shall undergo simple imprisonment for two months. (c) It is made clear that it will be sufficient compliance with the directions above made for deposit of compensation if petitioner paid the compensation to respondent No.1 through Crl.R.P.No.2011 8 his counsel in the trial court and respondent No.1 filed statement in the trial court through his counsel acknowledging receipt of compensation within the aforesaid time. (d) It is made clear that in case of default in paying compensation as aforesaid, petitioner has to undergo the default sentence as above stated which will run consecutively. Petitioner shall appear in the trial court on 06-10-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/