IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 2340 of 2009() ------------------------------ CRA.297/2002 of ADDL.SESSIONS COURT, KOTTAYAM CC.62/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(/APPELLANT/ACCUSED: --------------------- NOORUDEEN NAZAR, FRUIT MERCHANT, OLD MARKET, KOTTAYAM, (KALLUTHARA KISHAKKETHIL HOUSE, PADA NORTH, KARUNAGAPPALY). BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. M.V.JOSHUVA, MALAYITHAZHATHIL HOUSE, PAKKIL P.O., KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALERNAKULAM PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2340 of 2009 --------------------------------------- Dated this 22nd 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 him. Heard counsel for petitioner and public prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in criminal appeal No.297 of 2002 confirming conviction and sentence of petitioner for offence punishable under Sec.138 of the Negotiable Instruments Act. According to respondent No.1, petitioner owed Rs.64960/- to him and for repayment of that amount issued Ext.P1, cheque dated 15-05-1999. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P5. Service of statutory notice on petitioner is proved by Ext.P3 and P4. Respondent No.1 gave evidence as PW1 and testified to his case. He stated that petitioner had borrowed the amount and for repayment of that amount issued the cheque. According to the petitioner, he has discharged the liability and in proof of that examined DW1. DW1 stated that respondent No.1 is a contractor engaged in advancing money on payment of interest and that respondent No.1 had lent Crl.R.P.No.2340 of 2009 2 a sum of Rs.50000/- to the petitioner. It is further claimed that petitioner repaid Rs.12000/- in three instalments. Petitioner claimed that entire amount was repaid. Courts below were not impressed by the evidence of DW1. 3. It is not disputed that petitioner had money transaction with respondent No.1. It is also not disputed that in connection with that, petitioner had given Ext.P1 to respondent No.1. As regard the case of the petitioner regarding the amount borrowed and its repayment what is available is evidence of DW1. He claimed to have been present on all occasions petitioner borrowed the amount and repaid it in instalments. That version of DW1 is does not appear to me as truthful. Moreover inspite of serving statutory notice petitioner did not reply to it. It is in these circumstances that courts below found in favour of due execution of the cheque. On going through the judgment under challenge and hearing learned counsel I do not find any illegality, irregularity or impropriety in that finding requiring interference. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. Learned Additional Sessions Judge confirmed the sentence. It is prayed that leniency may be shown to the petitioner. Having regard to the nature of Crl.R.P.No.2340 of 2009 3 the offence and object of legislation I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time, while showing leniency to the petitioner the plight of respondent No.1 who suffered loss at the hands of petitioner cannot be forgotten. He has to compensated for the loss caused to him. This case was decided by the learned magistrate on 03-07-2002. The cheque is of the year 1999. Considering these circumstances I direct petitioner to pay compensation or Rs.72000/- to respondent No.1 failing which, petitioner has to undergo simple imprisonment for a period of six months. 5. Learned counsel requested that petitioner may be granted three months' time to deposit compensation. He stated that petitioner has several liabilities also to be discharged. Considering the circumstances stated by learned counsel, petitioner is granted two months' time from today to deposit compensation. Resultantly this revision is allowed in part to the following extent: (1)Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.2340 of 2009 4 (2)Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.72000/- (Rupees Seventy Two Thousand Only) as compensation under Sec.357(3) of the Code of Criminal Procedure within two months failing which petitioner shall undergo simple imprisonment for six months. Petitioner shall appear in the trial court on 24-09-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/