IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2428 of 2009() ------------------------------ CRA.1137/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM C.C.No.278 of 2005 of JUDICIAL FIRST CLASS MAGISTRATE, NEYYATTINKARA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- BINU.S.K.NAIR, S/O. SREEKUMARAN NAIR THIRUVAMPADI, ALTHOOR, ANAVOOR.P.O. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS/STATE AND COMPLAINANT: ------------------------------------ 1. THE STATE OF KERALA, RP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ROBINSON, S/O. PONNOSE NADAR, AMBANATTA BANGLOW, ALTHOOR ANAVOOR.P.O. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2428 of 2009 --------------------------------------- Dated this 30th day of July 2009 ORDER Notice to respondent No.2 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 who took notice for respondent No.1. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-I, Thiruvananthapuram in criminal appeal No.1137 of 2006 arising from judgment of learned Judicial Magistrate of First Class-IV, Neyyantinkara in C.C.No.278 of 2005 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.2, petitioner borrowed Rs.15000/- from him on 30-12-2003 and issued Ext.P1, cheque dated 30-12-2003 for repayment of that amount. That cheque was dishonoured as account was closed is seen from Ext.P2 and P3. Service of statutory notice of petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and spoke to his case. According to petitioner, transaction was between his brother and respondent No.2 and as security, his signed blank cheque was given. Brother of petitioner gave evidence as DW1 and stated that he had transaction with respondentNo.2 In that transaction, a signed blank cheque of petitioner was given as security. Crl.R.P.No.2428 of 2009 2 Ext.D1 is copy of complaint in C.C.No.275 of 2005 preferred by respondent No.2 against DW1. Ext.D2 is copy of deposition of respondent No.2 in that case. Ext.D3 is the copy of documents produced in that case. That case was settled between DW1 and respondent No.2. Consequent to which the case was withdrawn as seen from Exts.D4 and D5. Learned magistrate observed that if Ext.D1 was given to respondent No.2 as security for the transaction between DW1 and respondent No.2, normally arrangement would have been made to withdraw the case on hand also as the settlement between DW1 and respondent No.2 and the withdrawal of C.C.No.275 of 2005 were at a time when the case on hand was pending. Courts below were not inclined to believe the evidence of DW1. Petitioner did not reply to the statutory notice served on him. In these circumstances there is no reason to interfere with the finding of the court below regarding due execution of the cheque. Petitioner failed to rebut the presumption under section 139 of the Code of Criminal Procedure. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment till rising of the court. Petitioner was directed to pay compensation of Rs.15000/- to respondent No.2 and in default of payment to undergo simple imprisonment for fifteen days. Learned counsel requested that compensation payable may be converted as fine and that sentence may be modified. Petitioner seeks one month Crl.R.P.No.2428 of 2009 3 to deposit fine in the trail court. Having regard to the nature of offence involved and object of legislation I am satisfied that sentence can be modified as fine of Rs.15000/- with direction that the fine if realised will be given to respondent No.2 as compensation. Resultantly this revision is allowed in part to the following extent: 1. Sentence awarded by the court below is modified as below: 1. Substantive sentence awarded to the petitioner and direction for payment of compensation are set aside. Instead, petitioner is sentenced to pay fine of Rs.15000/-(Rupees Fifteen Thousand Only) and in default of payment to undergo simple imprisonment for one month. 2. It is directed that the fine if realised will be given to respondent No.2 as compensation under section 357(1) of the Code of Criminal Procedure. 3. Petitioner is granted one months' time to deposit fine in the trial court. 4. In case of default in deposit of fine within the aforesaid time petitioner shall appear in the trail court on 31-08-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/