IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 CRL.REV.PET.NO. 1640 OF 2009() -------------------------------------------- CRA.573/2006 OF ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.227/2004 OF JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- P. SANALKUKMAR, S/O. PRABHAKARAN VELIYIL LHOUSE, CHIRAKKADAVOM, KAYAMKULAM. BY ADV. SRI.S.MOHANAN RESPONDENT(S) - RESPONDENTS - COMPLAINANT: ----------------------------------------------------------------- 1. SURESH, PALATHINKEEZHIL CHIRAKKADAVOM, KAYAMKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN R2 SRI.BRIJESH MOHAN FOR R1 SMT.RESMI G. NAIR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1640 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009 O R D E R -------------- On a private complaint preferred by respondent No.1, petitioner stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case brought up by respondent No.1 is that petitioner borrowed Rs.25,000/- from him and issued Ext.P1, cheque dated 5.11.2003 for the discharge of that debt/liability. Cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner but he purposely evaded it. Dishonour of the cheque is proved by Exts.P2 and P3 and evidence of P.W.3, Manager of the drawee bank. Contention of the petitioner as to execution of cheque is that he had borrowed only Rs.10,000/- and given a signed blank cheque as security. He repaid the said amount but respondent No.1 did not return the cheque. 2. So far as due execution of cheque is concerned apart from merely suggesting to P.W.1 in that way, petitioner did not prove or probabilise the circumstances which he pleaded under which according to him the cheque happened to be in the custody of respondent No1. Respondent No.1 has given evidence regarding the CRL. R.P. No.1640 of 2009 -: 2 :- transaction and the execution of the cheque. It is admitted by the petitioner that Ext.P1 contained his signature and that in connection with the transaction he had with respondent No.1, he handed over the cheque to respondent No.1. Nothing is brought out to disbelieve the evidence of respondent No.1. Courts below, considering the evidence of P.W.1 and in the light of the circumstances proved in the case found that petitioner issued the cheque in discharge of the debt. 3. One contention raised by the petitioner is that complaint filed is premature in that notice was returned to respondent No.1 only on 16.3.2004. Complaint was filed on 31.3.2004. Exhibit P5 is the office copy of notice and Ext.P4, postal receipt for sending the same by registered post. Exhibit P6 is the notice returned unserved. Evidence of postman is that intimation was given to the petitioner about the registered notice on 4.3.2004. Learned magistrate took 4.3.2004 as the relevant day for computing the grace period for payment of the amount which is legal and proper and hence the contention that the complaint is premature cannot stand. On going through the judgments under challenge I do not find reason to interfere with the conviction of the petitioner. 4. Trial court sentenced the petitioner to undergo simple CRL. R.P. No.1640 of 2009 -: 3 :- imprisonment for one month and directed payment of compensation of Rs.25,000/- with a default clause to undergo simple imprisonment for two months. Appellate court did not gave any respite in the matter of sentence. In the facts and circumstances of the case and considering the object of legislation I am persuaded to think that simple imprisonment till rising of the court will be sufficient in the ends of justice. Since the direction for payment of compensation is in accordance with the object of legislation it requires no interference. Resultantly revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted two months' time from this day to deposit the compensation as ordered by the trial court for payment to respondent No.1. (iii) It is made clear that it shall be sufficient of compliance 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 two months. (iv) Amount if any deposited by the petitioner in any of the courts below can be CRL. R.P. No.1640 of 2009 -: 4 :- withdrawn by respondent No.1 and the same shall be adjusted in the compensation directed to be deposited hereby. Petitioner shall appear in the trial court on 28.7.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv