IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 2391 of 2009 ------------------------------ CRA.132/2008 of ADDITIONAL SESSIONS COURT (FAST TRACK-II), KOZHIKODE CC.78/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI .................... REVN. PETITIONER/APPELLANT IN CRL.APPEAL /ACCUSED: ---------------------------------------------------- E.T.PADMANABHAN, S/O.NARAYANAN NAIR, AGED 48 YEARS, EDATHIL THAZHA HOUSE, IRINGAL. BY ADV. SRI.M.SAMEER BABU SRI.PETER M.PAUL RESPONDENT/RESPONDENTS IN CRL.APPEAL/ COMPLAINANT & STATE: --------------- 1. RAJEEVAN.K., S/O.GOPALAN, POTHROLI HOUSE, IRINGAL AMSOM, KOILANDI TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2391 of 2009 --------------------------------------- Dated this 28th day of July 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-II, Kozhikode in criminal appeal No. 132 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.60,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 19-12-2006. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2. Service of statutory notice on petitioner is admitted and proved by Exts.P3 and P4. Ext.P5 is the reply. According to petitioner, there was no loan transaction between him and respondent No.1. Instead with himself as President and respondent No.1 as member, a Sports Club of the locality had decided to conduct a volleyball tournament and for that purpose raise funds. It was decided to raise funds by way of loan from one Murali . Respondent No.1 agreed to collect the amount from the said Murali and as security the signed blank cheque of petitioner was entrusted Crl.R.P.No.2391 of 2009 2 with respondent No.1. The amount borrowed from the said Murali was repaid. When the committee asked respondent No.1 to return the signed blank cheque, he did not do so, misused it and preferred the complaint. Petitioner did not adduce any oral evidence and marked Ext.D1, minutes book of the Club. Courts below were not impressed by Ext.D1 and found in favour of respondent No.1. Learned counsel contended that the finding is not correct. It is pointed out by learned counsel that respondent No.1 had not disputed the signature appearing to be his in the minutes of the meeting held on 15-01-2005 which decided to raise funds by way of loan from Murali. 3. Ext.D1, it is not disputed is the minutes book of the meeting of the committee. Ext.D1 was marked through respondent No.1. That did not mean that Ext.D1 is a minutes book properly maintained by the committee. Courts below have found, and it is not disputed also that many of the sheets in Ext.D1 are loose sheets and certain papers were seen either torn or stuck off. So far as alleged decision on 15-01-2005 is concerned presence of respondent No.1 is also referred therein but he did not admit that. Initially he denied that he had signed the minutes on 15-01-2005 but later, he pleaded ignorance. Either way, is no evidence to show that the minutes for the meeting on 15-01-2005 was signed by respondent No.1. It was up to the petitioner to examine somebody connected with the committee Crl.R.P.No.2391 of 2009 3 and the meeting held on 15-01-2005 to prove that respondent No.1 attended the meeting and signed the minutes. Petitioner did not also examine Murali from whom loan is said to have been availed and to whom signed blank cheque as security was meant. It is in the above circumstances, that courts below found in favour of due execution of the cheque. I have gone through the judgments under challenge and I do not find reason to interfere. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and payment of compensation Rs.60000/- (Rupees Sixty Thousand Only) to respondent No.1. No default sentence was provided. It is submitted that sentence awarded is excessive. 5. Having regard to the facts and circumstances of the case I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with direction for payment of compensation. Court are authorised to provide default sentence for non payment of compensation. I have modified substantive sentence as simple imprisonment till rising of the court. In the facts and circumstances petitioner has undergo simple imprisonment for three months in case of non payment of compensation. 6. Learned counsel requested that petitioner may be granted Crl.R.P.No.2391 of 2009 4 six months time to deposit compensation. Considering the circumstances stated by learned counsel, petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 30-12-2009 to deposit compensation in the trial court. In case of failure he shall undergo simple imprisonment for three months. 3. It is made clear that it will be sufficient compliance of the direction for deposit 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 his counsel acknowledging receipt of the amount within the period aforesaid. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/