IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.Rev.Pet.No. 2367 of 2009() ------------------------------ CRA.76/2007 of ADDL.SESSIONS COURT (ADHOC-I), KOTTAYAM ST.740/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- K.N.SUDARSANAN, AGED 39 S/O.NARAYANAN, KATTIYIL HOUSE, KARINILAM P.O. ERUMELY NORTH VILLAGE, KANJIRAPPALLY, KOTTAYAM. BY ADV. SRI.N.P.SETHU RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE -------------------------- 1. JOSE KUTTY THOMAS, POTTANICKAL HOUSE, KATTACHIRA P.O., ETTUMANOOR P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2367 of 2009 -------------------------------------- Dated this the 24th 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. 2. Petitioner is challenging the concurrent finding regarding due execution of a cheque for the discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Kanjirappally in S.T.No.740 of 2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a private complaint preferred by respondent No.1. Case is that petitioner borrowed Rs.75,000/- from him, executed a demand promissory note and on his demanding repayment issued Ext.P1, cheque dated 10.11.2004. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued statutory notice to the petitioner but the notice was returned unclaimed inspite of intimation given to the petitioner as seen from Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to his case. According to the petitioner, he had no transaction with respondent No.1 and instead, had transaction with a friend of his to whom Ext.P1 in signed blank form was given. That cheque was misused. Petitioner, apart from suggesting so which Crl.R.P.No.2367/2009 2 respondent No.1 denied took no steps to prove or probabilise that contention. Nothing is brought out to disbelieve the evidence of respondent No.1. That the registered notice sent on behalf of respondent No.1 was returned unclaimed inspite of intimation given to the petitioner indicates that petitioner was aware of the nature of claim being made on behalf of respondent No.1 On going through the judgments under challenge and hearing learned counsel, I do not find reason to interfere with the concurrent finding entered by the courts below. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for four months. Petitioner was directed to deposit Rs.75,000/- for payment to respondent No.1 as compensation and in default of payment, to undergo simple imprisonment for eighty days. Appellate court did not interfere with the sentence. It is contended that sentence imposed is excessive. Learned counsel requested that petitioner may be granted six months' time to deposit the compensation. Counsel states that petitioner is not in a position to raise the entire amount immediately. 5. Having regard to the nature of offence and object of legislation, I am inclined to think 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 deposit of compensation at the instance of petitioner. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 30.12.2009 to deposit compensation in the trial court. In case of non-payment, petitioner has to undergo imprisonment which in the facts and Crl.R.P.No.2367/2009 3 circumstances of the case and considering the modification of substantive sentence is fixed as simple imprisonment for four (4) months. 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 30.12.2009 to deposit in the trial court for payment to respondent No.1 Rs.75,000/- ( Rupees seventyfive thousand only) as compensation under Section 357(3) of the Code. In case of failure petitioner has to undergo simple imprisonment for four months. iii. It is made clear that it will be sufficient compliance with 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 the compensation within the above said time. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31.12.2009. THOMAS P.JOSEPH, Judge. cks