IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 CRL.REV.PET.NO. 1685 OF 2009() ----------------------------------------------- CRA.50/2008 OF SESSIONS COURT, KASARAGOD CC.89/2007 OF JUDICIAL FIRST CLASS MAGISTRATE KASARGOD .......................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- A.P. ABOOBACKER, AGED 55 YEARS, S/O.ABDULLA, RESIDING AT KUNTAR HOUSE, ADHUR VILLAGE, KASARGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S) - RESPONDENTS - COMPLAINANT: ----------------------------------------------------------------- 1. C.I. ABDULLAKUMNHI, S/O. LATE IBRAHIM, CHOORI, RAMDAS NAGAR, KASARGOD P.O., KASARGOD DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1685 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of May, 2009 O R D E R -------------- 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 pass in this case. 2. This case arise from a private complaint filed by respondent No.1 alleging that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act. His case is that petitioner owed Rs.2,50,000/- to him and for the discharge of that debt petitioner issued Ext.P1, cheque dated 10.1.2007. That cheque was dishonoured for insufficiency of funds. Statutory notice served on him was returned unclaimed in spite of giving intimation. Respondent No.1 gave evidence and testified to his case. Dishonour of cheque is proved by Exts.P2 and P3. Exhibit P4 is office copy of the notice. Exhibit P5, unclaimed registered notice returned to the Advocate for respondent No.1 shows that in spite of intimation given petitioner did not claim the notice. Courts below found in favour of dishonour of cheque for insufficiency of funds and deemed service of notice on the petitioner. These findings are not challenged before me. Contention raised by the petitioner is that he owed Rs.1,26,026/- to CRL. R.P. No.1685 of 2009 -: 2 :- respondent No.1 and it was repaid in two instlaments. Petitioner gave evidence as D.W.1 and proved Exts.D1 and D2 series. Courts below were not impressed by the contention raised by the petitioner and found in favour of due execution of the cheque as stated by respondent No.1. Learned Magistrate in paragraph 6 of the judgment stated that Ext.D1 is stated to be a receipt issued by respondent No.1. Exhibit D1 does not mention the name of the jewellery shop wherefrom petitioner is stated to have obtained it. So far as Ext.D2 series is concerned, it is observed by the learned Magistrate that Ext.D2(a), claimed to be a bill for payment of cash is not actually a cash bill and there is no endorsement in Ext.D2(a) as to receipt of any amount. Exhibit D2(b) and (c) are also found to be not in any way affected the case set up by respondent No.1 as P.W.1. It is in these circumstances learned Magistrate found that the evidence of petitioner and the documents proved by him are not sufficient to prove that petitioner had not executed the cheque in favour of respondent No.1. That finding has been confirmed by the appellate court also. On going through the judgments under challenge it is seen that the courts below have appreciated the evidence adduced by both sides and found in favour of P.W.1 in the matter of due execution of cheque. I do not find any reason to interfere in revision with that finding. CRL. R.P. No.1685 of 2009 -: 3 :- 3. Learned Magistrate sentenced petitioner to undergo simple imprisonment for six months with a direction to pay compensation of Rs.2,50,000/-. In appeal the substantive sentence of imprisonment was modified as simple imprisonment for ten days while the direction for payment of compensation was confirmed. 4. Learned counsel for the petitioner submitted that sentence is excessive and prayed for leniency. He also requested four months' time to deposit the compensation ordered. Counsel pointed out that petitioner is involved in another case where also he has been directed to pay compensation. 5. In the facts and circumstances of the case and considering the object of legislation I am inclined to think that simple imprisonment till the rising of court and payment of compensation as awarded by the courts below will be sufficient in the ends of justice. Resultantly, this revision petition is allowed in part in the following lines: (i) Substantive sentence of imprisonment is modified as simple imprisonment till the rising of court. (ii) Petitioner is granted three months' time from this day to pay the compensation as CRL. R.P. No.1685 of 2009 -: 4 :- ordered. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if the petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period three months. (iv) Petitioner shall surrender in the trial court on 7.9.2009 to receive the sentence. It is pointed out by learned counsel for petitioner that warrant is pending against the petitioner and he has been arrested by the Kasargod police. Sentence imposed on the petitioner has been modified by me as per this order granting three months' time to the petitioner to deposit the compensation ordered. Registry is directed to issue necessary directions to the Judicial First Class Magistrate-II (Additional Munsiff), Kasargod to order release of the petitioner forthwith. THOMAS P.JOSEPH, JUDGE. vsv