IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.REV.PET.NO. 2199 OF 2009() -------------------------------------------- CRA.659/2005 OF II ADDL.SESSIONS COURT, KOLLAM CC.379/2004 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT - ACCUSED -------------------------------------------------------------- ARAVINDAKSHA KURUP AGED 54 YEARS, S/O. BALAKRISHNAN UNNITHAN, MALUTE VEEDU, THOTTUVA, ANYADI.P.O., SOORANADU. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT(S): COMPLAINANT ---------------------------------------------- 1. M.SATHEESH BABU, SATHEESH BHAVAN, PAVITHRESWARAM VILLAGE, PUTHOOR, KOTTARAKKARA. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2199 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of July, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Thiruvananthapuram in Crl.Appeal No.659 of 2005 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. 3. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Kottarakkara in C.C. No.379 of 2004. Case against him is that he borrowed Rs.85,000/- from respondent No.1 agreeing to repay the same within one month and for repayment of that amount issued Ext.P1, cheque dated 29.12.2003. That cheque was dishonoured for insufficiency of funds. Dishonour of the cheque for the reason stated above is proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are proved by Exts.P4 to P6. Respondent No.1 gave evidence as P.W.1 and stated to his case. CRL. R.P. No.2199 of 2009 -: 2 :- Findings regarding cause of dishonour and service of statutory notice are not under challenge. According to the petitioner he had borrowed only Rs.50,000/- and given a signed blank cheque which was misused. To prove that, he examined D.W.1. In his examination in chief D.W.1 stated that petitioner borrowed Rs.50,000/- from respondent No.1. His cross-examination was adjourned on payment costs but he did not turn up for cross-examination. Non-bailable warrant was issued to D.W1. That was futile. Result is that D.W.1. has not offered himself for cross-examination. Hence evidence in chief examination (of D.W.1) cannot be used against respondent No.1. Even otherwise there is no acceptable evidence to show that petitioner borrowed only Rs.50,000/- or had given a signed blank cheque. It is true that petitioner has produced copy of the reply notice as Ext.D1 where he has taken up the same contention. But that contention is not established. Courts below found that there is no reason to disbelieve the evidence of respondent No.1 and held that petitioner issued the cheque for the discharge of a legally recoverable debt/liability. I do not find reason to interfere with the said finding. 4. In the course of trial petitioner paid Rs.25,000/- to respondent No.1. Learned magistrate sentenced petitioner to CRL. R.P. No.2199 of 2009 -: 3 :- undergo simple imprisonment for five months and taking note of the amount already paid he was directed to pay compensation of Rs.60,000/- to respondent No.1 and in default to undergo simple imprisonment for three months. Appellate court set aside the sentence and directed petitioner to pay fine of Rs.60,000/- with a default sentence of imprisonment for two months. It was further directed that fine if realised will be paid to respondent No.1 as compensation under Sec.357(1) of the Code of Criminal Procedure (for short, “the Code”). Learned counsel submitted that sentence awarded is excessive, fine imposed may be converted as compensation payable directly to respondent No.1 and that three months' time may be granted to petitioner to deposit compensation as petitioner is unable to raise the amount immediately. 5. Having regard to the nature of offence which does not involve any moral turpitude and considering the submission of learned counsel I am inclined to modify the sentence awarded by the appellate court. In the appeal from conviction and sentence appellate court is competent to alter or modify the sentence though not as to enhance the same. This Court has held so in Radhakrishnan Nair v. Padmanabhan (2000 (2) KLT 349). There, trial court awarded CRL. R.P. No.2199 of 2009 -: 4 :- sentence of fine exceeding Rs.5,000/-. Appellate court converted the sentence as simple imprisonment till rising of the court and directed payment of compensation. This Court held that it did not amount to any enhancement of sentence but is only an alternation or modification. This Court while exercising revisional power under Section 401 of the Code of Criminal Procedure can exercise such power as are vested in a court of appeal. Hence this Court can alter/modify the sentence even in the revision filed by petitioner. As requested by learned counsel, I am inclined to covert fine payable as compensation for which it is necessary to provide a sentence of imprisonment. In the circumstances of the case petitioner is sentenced to undergo simple imprisonment till rising of the court. Fine is converted as compensation payable to respondent No.1. Considering the request made by counsel, petitioner is granted three months' time to deposit the compensation in the trial court. Resultantly, this revision is allowed in part to the following extent. (i) Sentence imposed by the appellate court is set aside. (ii) Petitioner is sentenced to undergo simple imprisonment till rising of the court. CRL. R.P. No.2199 of 2009 -: 5 :- (iii) Petitioner is directed to deposit in the trial court within three months from this day Rs.60,000/- (Rupees Sixty thousand only) as compensation for payment to respondent No.1 under Section 357(3) of the Code. In case of default, he shall undergo simple imprisonment for two months. (iv) It is made clear that it shall be sufficient compliance with condition (iii) if 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 of three months. Petitioner shall appear in the trial court on 12.10.2009 to receive the sentence. Until then warrant if any against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv