IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.Rev.Pet.No. 2301 of 2009 ------------------------------ CRA.836/2007 of II ADDL.SESSIONS COURT, ERNAKULAM CC.269/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVISION PETITIONR/APPELLANT/ACCUSED: --------------------------------------------------------- MARY JOHN,PROPRIETRIX,NEW VISION HOUSE, HAFINA BUILDIN,POLLACHI ROAD, KOOTTUPATHA, PALAKKAD-678007. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------ 1. KALYANI SHARP INDIA LIMITED,AMAL COMPLEX C.P.UMMER ROAD,ERNAKULAM-682035,BY ITS AUTHORIZED SIGNATORY MR.ASHOK.P. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2301 of 2009 --------------------------------------- Dated this 16th day of July 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 her. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision arises from the judgment of learned Judicial First Class Magistrate-II, Kochi in C.C.No.269 of 2004 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act as confirmed by learned Additional Sessions Judge-II, Ernakulam in criminal appeal No.836 of 2007. Respondent No.1 is a company engaged in manufacture and sale of electronics and other electrical items. According to respondent No.1, petitioner who is a dealer in such items had business transactions with it and as on 30-11-2003 owed Rs.13,02,481.98/- to it. For discharge of that liability petitioner issued six cheques dated 04-11-2003 for Rs.two lakhs each. Exts.P2 to P4 are three of those cheques for a total sum of Rs.six lakhs. Those cheques were dishonoured for insufficiency of funds as proved by Ext.P5 series, P6 and P9. Service of notice on petitioner is proved by Exts.P7 and P8 series. Representative of respondent No.1 gave evidence as PW1 and spoke to the transaction leading to the execution of the cheques. Crl.R.P.No.2301 of 2009 2 According to the petitioner, cheques were issued at the time of commencement of business transaction as security. 3. So far as execution of the cheques is concerned, PW1 has given evidence regarding that. Petitioner does not dispute that she had handed over the cheques to respondent No.1 in connection with the business. Her case is that the cheques were given as security. Liability of petitioner to respondent No.1 is proved by the evidence of PW1 and Ext.P9. Nothing is brought out to disbelieve the evidence of PW1. Petitioner did not reply to the statutory notice served on her. In these circumstances there is no reason to interfere with the concurrent finding entered by the courts below regarding execution of the cheque. Petitioner has not rebutted the presumption appearing against her under section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year and directed her to pay compensation of Rs.eight lakhs to respondent No.1. It is however seen that no default sentence was provided by learned magistrate. Appellate court modified the sentence as simple imprisonment till rising of the court, fine of Rs. eight lakhs and default sentence of simple imprisonment for six months. Learned counsel requested that fine may be converted as compensation payable to respondent No.1 directly. He also requested that petitioner may be granted eight months time to deposit compensation. Having regard to the facts of the case and the amount Crl.R.P.No.2301 of 2009 3 involved I am inclined to think that simple imprisonment as awarded by the appellate court and payment of compensation is sufficient in the ends of justice. Petitioner is granted time till 30-12-2009 to pay compensation. Resultantly this revision is allowed in part to the following extent: 1. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.800000/- (Rupees Eight Lakh Only) as 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 six months. 2. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if 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 its counsel acknowledging receipt of compensation within the period aforesaid. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31-12-2009. THOMAS P JOSEPH, JUDGE Sbna/