IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 CRL.REV.PET.NO. 2451 OF 2009() ----------------------------------------------- CRA.136/2008 OF ADDL. SESSIONS COURT-II, MAVELIKKARA CC.453/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- K.K.KURUVILA, KOMADATHUSSERIL HOUSE, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.A.C.DEVY RESPONDENT(S): COMPLAINANT: ---------------------------------------------- 1. K.C.MATHEW, KANGAZHA VEEDU, MUZHUKEER MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2451 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the day of July, 2009 O R D E R -------------- In this revision filed by the accused, concurrent finding against him and consequent conviction under Section 138 of the Negotiable Instruments Act (for short, “the Act”) are under challenge. According to respondent No.1, petitioner/accused borrowed Rs.50,000/- from him and issued Ext.P1, cheque dated 30.3.2006. That cheque was dishonoured as account was closed which is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as P.W.1 and testified to his case. According to the petitioner his brother borrowed Rs.40,000/- and for that transaction he acted as guarantor and gave cheque as security. Against the brother respondent No.1 filed C.C. No.454 of 2006. On 17.4.2007 that case was settled between his brother and respondent No.1. According to the learned counsel no further amount is due to respondent No.1. Exhibit D1 is the copy of the complaint in C.C.No.454 of 2006. 2. Petitioner has not adduced any evidence except producing Ext.D1 which only revealed that against his brother, respondent No.1 had preferred a complaint for offence under Sec.138 of the Act. If CRL. R.P. No.2451 of 2009 -: 2 :- case of petitioner that there was only one transaction and the case against his brother was settled on 17.4.2007 were correct, that settlement was at a time when the case on hand was pending. If petitioner gave cheque as security for the transaction referred to in Ext.D1, normally when that case was settled there would have been an understanding between the parties as regards the case on hand as well. That did not happen. That indicated that transaction in this case and Ext.D1 case are not the same. Moreover, petitioner has not replied to the notice served on him. In these circumstances courts below rightly found in favour of due execution of the cheque. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay compensation of Rs.55,000/- with a default sentence of simple imprisonment for three months. Learned Additional Sessions Judge did not interfere with the sentence, direction for payment of compensation or the default sentence. It is contended that sentence imposed is excessive. 4. Learned counsel requested six months’ time to deposit the compensation. He submitted that petitioner is unable to raise the amount immediately and requested that petitioner may be permitted CRL. R.P. No.2451 of 2009 -: 3 :- to pay the compensation directly to respondent No.1. Considering the circumstances stated by learned counsel and amount involved I am inclined to grant time till 30.12.2009. Having regard to the nature of offence substantive sentence can be modified as simple imprisonment till rising of the court. There is however, no reason to interfere with the direction for deposit of compensation and the default sentence at the instance of petitioner. Resultantly, this revision petition is allowed in part to the following extent: (i) 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 the compensation in the trial court as ordered by the learned magistrate. (iii) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through his CRL. R.P. No.2451 of 2009 -: 4 :- 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 said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv