IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.Rev.Pet.No. 2213 of 2009() ------------------------------------------- CRA.266/2007 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.1056/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- DR. UNNI.B, S/O. NARAYANAN NAMBOODIRI, MANAGING DIRECTOR, ALLIED HOSPITALS LTD., 2/333, KUNNMKULAM- GURUVAYOOR ROAD, ARTATTU P.O., KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE OF KERALA: ------------------------------------------------------------------------------------------------------ 1. K. RAJAN, “ ANUGRAHA”, MUTHOOR P.O., MUTHOOR, THIRUVALLA TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA AT ERNAKULAM. ADV. SRI. JAYAKRISHNAN, PUBLIC PROSECUTOR SRI.MVS.NAMBOOTHIRY FOR R1 SRI.R.VINU RAJ FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2213/ 2009 ORDER ON CRL. M.P NO.6685/2009 IN CRL R.P NO.2213/2009 DISMISSED SD/- 9/07/2009 THOMAS P. JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/- THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2213 of 2009 --------------------------------------- Dated this 09th day of July 2009 ORDER Concurrent finding regarding execution of the cheque for discharge of legally enforceable debt/liability is called in question in this revision. Respondent No.1 contended that petitioner issued Exts.P1 to P3, cheques dated 31-03-03 for total sum of Rs.12,00,000/- for discharge of liability towards it. Those cheques were dishonoured for insufficiency of funds as proved by Exts.P4 to P6. On getting dishonour intimation respondent No.1 served statutory notice on petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Exts.P10 to P12. Respondent No.1 gave evidence as PW1 regarding the transaction and execution of the cheques. He was not cross examined on behalf of petitioner. Learned magistrate has observed that inspite of giving sufficient opportunity, there was no attempt by petitioner to cross examine respondent No.1 (PW1). When questioned under Sec.313 of the Code of Criminal Procedure petitioner had no explanation as to how else the cheques happened to be in the custody of respondent No.1. He did not also reply to the statutory notice served on him. So far as the transaction is concerned what is available is the unchalleged version of respondent No.1. It is not disputed that Exts.P1 to P3 are signed by the petitioner and drawn on the account maintained by him. Crl.R.P.No.2213 of 2009 2 Courts below on a consideration of the evidence found in favour of due execution of the cheques. Petitioner has not also rebutted the presumption under section 139 of the Act. As such petitioner cannot assail the concurrent finding and his consequent conviction under Sec.138 of the Negotiable Instruments Act. 2. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay Rs.1200000/- to respondent No.1 by way of compensation and in default of payment to undergo simple imprisonment for three months. Appellate court confirmed the sentence, direction for payment of compensation and the default sentence. It is contended by learned counsel that sentence awarded is excessive. Learned counsel requested that petitioner may be granted four months' time to deposit the compensation. 3. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation. 4. Learned counsel for respondent No.1 had no objection in granting four months' time to the petitioner to deposit the compensation. In the circumstances stated above petitioner is granted four months' time to deposit compensation. Crl.R.P.No.2213 of 2009 3 5. Since substantive sentence has been modified as above stated, I direct that petitioner has to undergo simple imprisonment for six months in case compensation is not deposited within the time permitted. Resultantly this revision is allowed in part to the following extent: (1)substantive sentence is awarded to the petitioner is modified as simple imprisonment till rising of the court. (2)Petitioner is granted four months' time from today to deposit in the trial court compensation for payment to respondent No.1 as ordered by learned magistrate. In case of failure, petitioner has to undergo simple imprisonment for six 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 11-11-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/