IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 2094 of 2009() ------------------------------ CRA.218/2008 of SESSIONS COURT, KASARAGOD STC.483/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------- RAMACHANDRAN, AGED 34 YEARS, S/O.LATE SRI.P.KUNHIKANNAN, PERMANENT RESIDENT OF TEKKAN BANGALAM, BANGALAM VILLAGE, HOSDURG TALUK AND NOW RESIDING AT MUTHURUTHIL HOUSE, ALINCHUVADU, VENNALA P.O., KOCHI-682 028, ERNAKULAM DISTRICT. BY ADV. SRI.ANIL S.RAJ RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SRI.P.KRISHNAN, AGED 55 YEARS, S/O.M.KUNHAMBU MANIYANI, RESIDING AT PANAYAL, POST PANAYAL, PANAYAL VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2094 of 2009 -------------------------------------- Dated this the 2nd day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Sessions Judge, Kasaragod in Crl.Appeal No.218 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Hosdurg in S.T.No.483 of 2007 on a complaint preferred by respondent No.2 alleging that in partial discharge of the debt petitioner issued Ext.P1, cheque dated 27.8.2005 for Rs.70,000/-, that cheque was dishonoured for insufficiency of funds but inspite of giving statutory notice petitioner did not pay the amount. Dishonour of the cheque for above stated reason is proved by Exts.P2 and P3. Issue and service of statutory notice are proved by Exts.P4 and P5. Finding of the courts below regarding cause of dishonour and issue and service of notice are not under challenge. Challenge in this revision is regarding the execution of the cheque. 3. Respondent No.2 has given evidence as PW1 and stated that at a Crl.R.P.No.2094/2009 2 time when petitioner, his nephew was in gulf during 2003 last and early 2004, petitioner offered to arrange viza for the son of respondent No.2 and on different occasions received a total sum of Rs.1,60,000/-. Petitioner failed to arrange viza. When petitioner came back to his native place, respondent No.2 demanded repayment of the amount. In partial discharge of the debt, petitioner issued Ext.P1, cheque dated 27.8.2005. Contention raised by petitioner is that his uncle (respondent No.2) cheated him. Respondent No.2 took signed blank cheque leaves from his room and misused it. Petitioner did not adduce any evidence. 4. It is not disputed that Ext.P1 is signed by the petitioner and drawn on the account maintained by him. Ofcourse he denied that he had any transaction with respondent No.2. Apart from suggesting so to respondent No.2, petitioner did not adduce any evidence or bring any such circumstances to prove or probabilise his contention. It is also seen that inspite of being intimated about dishonour of cheque for Rs.75,000/- and being called upon to pay that amount, petitioner did not respond to it. If the cheque happened to be in the custody of respondent No.2 in the circumstances by the petitioner , he would have normally given a reply to the statutory notice served on him. Nothing is brought out to disbelieve the version of respondent No.2 regarding the transaction and execution of the cheque. It is in these circumstances courts below accepting the evidence of respondent No.2 found the petitioner guilty. I do not find reason to interfere with that finding. 5. Learned magistrate sentenced petitioner to undergo simple Crl.R.P.No.2094/2009 3 imprisonment for six months. He was directed to pay compensation of Rs.70,000/- to respondent No.2 and in default of payment to undergo simple imprisonment for three months. Learned Sessions Judge modified the substantive sentence as simple imprisonment for one week while confirming direction for payment of compensation and default sentence. I do not find reason to interfere with the direction for payment of compensation or the default sentence provided. So far as substantive sentence is concerned I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. 6. Learned counsel requested that petitioner may be granted four months’ time to deposit compensation. Having regard to the relationship between the parties, the amount involved and the circumstances stated by learned counsel, I am inclined to grant three months’ time to deposit compensation in the trial court. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of court. ii. While retaining the direction for payment of compensation and default sentence provided by the courts below, petitioner is granted three month’s time to deposit Rs.70,000/- (Rupees seventy thousand only) in the trial court for payment to respondent No.2 as compensation. In case of default, petitioner has to undergo the default sentence provided by the courts below. iii. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid the compensation to Crl.R.P.No.2094/2009 4 respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of three months. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks