IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 2820 of 2009() ------------------------------ CRA.931/2007 of ADDL.DISTRICT AND SESSIONS COURT , FAST TRACK (ADHOC-II), KOZHIKODE. ST.1911/2006 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ABDUL KALAM,S/O.AVARAN,MALAKUZHIYIL HOUSE,KUNNAMANGALAM,KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. SUBHASH KUMAR,S/O.VASUDEVAN MOOSAD, KALATHIL ILLAM,CHOOLUR,KUNNAMANGALAM,KOZHIKODE. 2. STATE OF KERALA,REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2820 of 2009 -------------------------------------- Dated this the 28th day of August, 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. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is challenging the concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Special Judicial First Class Magistrate (Marad Cases), Kozhikode in S.T.No.1911 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.80,000/- from him on 2.6.2006 undertaking to repay the same within one month and on demanding repayment, petitioner issued Ext.P1, cheque dated 3.7.2006. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Issue and Service of statutory notice on petitioner are proved by Exts.P4 and P5. Respondent No.1 gave evidence as PW1 and spoke to his case. Case pleaded by petitioner is that at the time he borrowed Rs.10,000/- from respondent No.1, a signed blank cheque was given and that has been misused. Petitioner did not bring out circumstances or produce evidence to substantiate that contention. In these circumstances courts below concurrently Crl.R.P.No.2820/2009 2 found in favour of due execution of a cheque for the discharge of a legally enforceable debt/liability and held petitioner guilty. That finding is under challenge in this revision. 3. It is not disputed that petitioner had transaction with respondent No.1 and in connection with that transaction cheque in question was given to respondent No.1. Dispute is regarding the quantum of amount borrowed. Petitioner has not adduced evidence or brought out circumstances to show that he had borrowed only Rs.10,000/-. Nor did he reply to the notice served on him. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the concurrent findings entered by the courts below. Petitioner has not rebutted the presumption under Section 139 of the Act. Hence his conviction is legal and proper. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months. He was directed to pay compensation of Rs.80,000/- and in default of payment to undergo simple imprisonment for one month. Appellate court did not interfere with sentence. It is contended by learned counsel that substantive sentence awarded is excessive. 5. Learned counsel requested that petitioner may be granted six months' time to deposit compensation since petitioner is unable to raise the amount immediately on account of financial difficulties. It is also requested that Crl.R.P.No.2820/2009 3 petitioner may be permitted to pay compensation to respondent No.1 directly. Having regard to the nature of offence and object of legislation I am of the view that substantive sentence imposed on petitioner can be modified as simple imprisonment till rising of the court. There is no reason to interfere with the direction for payment of compensation at the instance of petitioner. Since substantive sentence is being modified as stated above and considering the amount involved I direct that petitioner has to undergo simple imprisonment for three months in case compensation is not paid/deposited. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 15.1.2010 to deposit/pay compensation . Resultantly, this revision petition 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 time till 15.1.2010 to deposit compensation in the trial court as ordered by that 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 the direction for deposit of compensation if petitioner paid 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 Crl.R.P.No.2820/2009 4 compensation within the above said period. Petitioner shall appear in the trial court on 18.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks