IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1936 of 2009() ------------------------------ CRA.783/2006 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.1243/2005 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KRISHNAN, S/O.KARUNAKARAN, POWATH HOUSE, PANGADA P.O., KOOROPPADA KARA, PAMPADY VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BABU P.V., S/O.VASU, PUTHENPARAMBIL HOUSE, PAMPADY KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.6.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1936 of 2009 -------------------------------------- Dated this the 22nd day of June, 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 this revision which is not prejudicial to him. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Kottayam in S.T.No.1243 of 2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on a complaint preferred by respondent No.2. According to respondent No.2, petitioner issued Ext.P1, cheque dated 8.9.2005 for Rs.50,000/- in discharge of his debt. The cheque was dishonourd for insufficiency of funds as proved by Exts.P2, P3 and P7. Respondent No.2 served statutory notice on the petitioner as proved by Exts.P4 to P6 intimating dishonour and demanding payment of the amount. According to the petitioner, he had no transaction with respondent No.2, nor had he issued any cheque to him. He claimed that he was indebted to DW3, stated to be the brother of respondent No.2 for the sum of Rs.11,800/- and while so on 15.4.2005 DW3 along with six others came to his house and Crl.R.P.No.1936/2009 2 forcibly obtained the cheque. Petitioner gave evidence as DW1. DW2 is his son. They stated about the alleged incident as spoken by petitioner (DW1). DW3 denied the suggestion that he is the brother of respondent No.2. He denied any high handed action in obtaining the cheque from petitioner. Courts below rejected the contention raised by petitioner, found that he issued the cheque in favour of respondent No.2 for discharge of debt, that he failed to rebut the presumption under Section 139 of the Act and held him guilty under Section 138 of the Act. 3. It is true that petitioner has an alternative case as to how the cheque happened to be in the custody of respondent No.2. DW3 who according to the petitioner is brother of respondent No.2 denied that. It is not shown by reliable evidence that DW3 had obtained Ext.P1 from petitioner in the manner claimed by the latter. Evidence of petitioner and his son as DWs 1 and 2 is not sufficient particularly as petitioner did not respond to the notice served on him on behalf of respondent No.2 to hold against due execution of the cheque. If the petitioner had nothing to do with respondent No.2 and he happened to issue the cheque in the circumstance he pleaded, he would have replied to respond to the notice in that line. There is also no evidence to show that inspite of seven persons allegedly barging into his house and forcibly obtaining a signed blank cheque, he preferred any complaint to the police. Nor did he inform his bank about that and request for stopping payment. Courts below considered the evidence and found in favour of due execution of the cheque. There is no reason to interfere with that finding. Crl.R.P.No.1936/2009 3 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed him to pay Rs.50,000/- as compensation to respondent No.2. In case of default petitioner was directed to undergo simple imprisonment for one month. Appellate court did not interfere with the sentence, direction for payment of compensation or the default sentence. Learned counsel submitted that petitioner has been arrested and is undergoing imprisonment from 19.6.2009 onwards. Learned counsel requested for leniency in the matter of sentence. Petitioner is prepared to deposit compensation in the trial court. Learned counsel requested that petitioner may be granted three months' time to deposit compensation in the trial court. 5. Having regard to the nature of offence and the amount involved, I am inclined to think that imprisonment already undergone by petitioner is sufficient in the ends of justice. At the same time there is no reason to interfere with the direction for payment of compensation. Considering circumstances stated by learned counsel, I am inclined to grant three months' time to the petitioner to deposit compensation in the trial court. In case of non-payment he has to undergo simple imprisonment for two months. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified and confined to the period of imprisonment already undergone by him. Crl.R.P.No.1936/2009 4 ii. Petitioner is granted three months' time from today to deposit Rs.50,000/- (Rupees Fifty thousand only) in the trial court for payment to respondent No.2 as compensation. In case of default, petitioner shall undergo simple imprisonment for two months. iii. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to 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 the compensation within the aforesaid time. iv. Petitioner shall be released from jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Sub Jail, Kollam. v. Petitioner shall appear in the trial court on 24.9.2009 in case compensation as aforesaid is not paid within the said period. THOMAS P.JOSEPH, Judge. cks