IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 2240 of 2009() ------------------------------ CRA.79/2008 of ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE. ST.2276/2005 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JISHI.P., S/O.CHANDRAN, PONATTIL HOUSE, PACHATTIRI POST, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER SRI.G.SIJI RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREE GOKULAM CHIT AND FINANCE CO.LTD., GOKULAM TOWER, NO.66, ARCOT ROAD, CHENNAI, REP.BY ITS LEGAL ASSISTANT SAVITHA K.V., W/O.K.V.THYAGARAJ, AGED 31 YEARS, DIVISIONAL OFFICE, TECHNO TOP BUILDING, VMB BUILDING, KOZHIKODE. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2240 of 2009 -------------------------------------- Dated this the 14th day of July, 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 and which is not prejudicial to it. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode in Crl.Appeal No.79 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a complaint preferred by respondent No.2 alleging that petitioner subscribed to a kuri with sala of Rupees two lakhs started by respondent No.2, prized it and received the amount. He defaulted repayment of future instalments and for discharge of liability to the tune of Rs.48,400/- issued Ext.P2, cheque dated 12.8.2005. Dishonour of that cheque for insufficiency is proved by Exts.P3, P4 and P8. Respondent No.2 served statutory notice on petitioner intimating dishonour and demanding payment of the amount. Service of notice is proved by Exts.P5 to P7. Petitioner claimed that he paid the amount to respondent No.2 but did not produce any evidence to substantiate that contention. Courts below found in favour of due execution of the cheque. Nothing is brought out to disbelieve the evidence of PW1, Legal Assistant who gave the evidence Crl.R.P.No.2240/2009 2 regarding the transaction and execution of the cheque. In these circumstances there is no reason to interfere with the finding of the courts below regarding execution of cheque for discharge of a legally enforceable debt/liability. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for five months. Petitioner was directed to pay compensation of Rs.50,000/- to respondent No.2 but no default sentence was provided. Appellate court confirmed the sentence. Learned counsel requested that sentence may be modified and three months' time may be granted to the petitioner to pay compensation. 4. So far compensation part of the sentence is concerned, I find no reason to interfere with the amount of compensation awarded but, petitioner has to undergo default sentence in case of non-payment of compensation. Courts are vested with the power to award default sentence for non-payment of compensation. 5. So far as substantive sentence is concerned having regard to the nature of offence and amount involved I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. Considering the financial difficulties of petitioner stated by learned counsel, petitioner is granted three months' time to deposit compensation. In case of default in payment of compensation petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: Crl.R.P.No.2240/2009 3 i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time from today to deposit compensation as ordered by the learned magistrate in the trial court. In case of failure, petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of direction for payment of compensation 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 its counsel acknowledging receipt of compensation within the said period of three months. iv. Amount if any deposited by the petitioner in any of the courts below shall be adjusted towards the compensation ordered to be paid. Petitioner shall appear in the trial court on 16.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks