IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 1581 of 2009(P) ------------------------------- CRA.51/2008 of SESSIONS COURT, KASARAGOD CC.125/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II(ADDITIONAL MUNSIFF) , KASARAGOD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- P.A.KAREEM, AGED 48 YEARS, S/O.ABULLA, RESIDING AT KADAMBAR, KADAMBAR VILLAGE, KASARAGOD DIST. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. AMINATH ZEENIA, W/O.C.H.ABDUL HAMEED, KUDLU VILLAGE AND POST, KASARAGOD DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1581 of 2009 -------------------------------------- Dated this the 21st day of May, 2009. ORDER Public prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make. 2. This revision petition is in challenge of the judgment of the Sessions Court, Kasaragod in Crl.Appeal No.51 of 2008 confirming the conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the substantive sentence awarded to him. 3. Case set up by respondent No.1 is that petitioner borrowed Rs.4,00,000/- from her and for the discharge of that liability, issued Ext.P1, cheque dated 9.2.2007. That cheque was presented for encashment but it was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.1 issued notice to the petitioner intimating the dishonour and demanding payment of the amount. Petitioner did not respond and hence, the complaint. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P5. Issue and service of notice are proved by Exts.P3 and P4. Version of petitioner is that in the year 2005, one Rauf, a close relative of his wife got a loan of Rupees One lakh from the husband of respondent No.1 with the petitioner as a guarantor and Crl.R.P.No.1581/2009 2 at that time, three signed blank cheques and two signed blank stamp papers were taken from him as security and one of those signed blank cheques has been misused. Petitioner gave evidence as DW1 and proved Exts.D1 and D2. 4. It is contended by learned counsel that respondent No.1 is a house wife who is unable to raise Rs.4,00,000/- for payment to the petitioner. Execution of the cheque is proved by the evidence of respondent No.1. Exts.D1 and D2 are not disputed by respondent No.1 also and would only show that there was some other transactions between the petitioner and husband of respondent No.1. In these circumstances, courts below were justified in relying on the presumption under Section 139 of the Act and found the petitioner guilty. 5 So far as sentence is concerned, learned Sessions Judge modified the substantive sentence awarded by the learned magistrate to simple imprisonment for ten days while retaining the direction for payment of compensation. 6. In the facts and circumstances of the case I am inclined to think that simple imprisonment till rising of the court and payment of compensation as awarded by the courts below will be sufficient punishment in the ends of justice. Resultantly, this revision is allowed in part and the sentence is modified as follows: Crl.R.P.No.1581/2009 3 i. Sentence of imprisonment is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time to deposit the compensation awarded by the courts below. It is made clear that it will be sufficient compliance with direction No.ii if within the aforesaid time, petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through her counsel within the aforesaid time acknowledging receipt of the amount. iii. Petitioner shall surrender in the trial court on 25.8.2009 to receive the sentence. Crl.M.A.No.4781 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks