IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2404 of 2009() ------------------------------ CRA.23/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1165/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- N.S.BIJU, AGED 32 YEARS, S/O.PURUSHOTHAMAN, NELLITHANATH HOUSE, SELLANPARA P.O., VELLATHOOVAL. BY ADV. SRI.P.S.NANDANAN SRI.P.N.ANOOP SRI.N.K.SHYJU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.ZODIAC AUTO FINANCE, LISSIE JUNCTION, COCHIN - 18, KERALA, REPRESENTED BY ITS MANAGER. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2404 of 2009 --------------------------------------- Dated this 29th day of July 2009 ORDER Judgment of learned Additional Sessions Judge (Adhoc-I), Ernakulam in criminal appeal No.23 of 2009 confirming conviction of petitioner but modifying the sentence for offence punishable under section 138 of the Negotiable Instruments Act is under challenge in this revision. According to respondent No.1, petitioner had availed a vehicle loan from him and for the sum of Rs.134000/- due on that account issued Ext.P2, cheque dated 25-02-2003. That, the cheque is dishonoured for insufficiency of funds is proved by Exts.P3 and P4. That, statutory notice was served on petitioner is proved by Exts.P5 and P6. PW1, representative of respondent No.1 authorised by Ext.P1 gave evidence regarding the transaction and execution of the cheque. Petitioner claimed that at the time of his availing the loan respondent No.1 obtained singed blank cheques. He has discharged the entire liability but the signed blank cheque has been misused. It is contended that the due execution of cheque is not proved. 2. PW1 has given evidence regarding the transaction. He stated that petitioner availed loan of Rs.127000/- on 19-09-2001 agreeing to repay the amount with interest in 30 instalments but paid only five instalments. For the balance sum of Rs.134000/- petitioner issued the cheque. It is not disputed that petitioner had transaction with respondent No.1. His plea is one of discharge. But that is not Crl.R.P.No.2404 of 2009 2 proved or probabilised. He neither produced nor summoned documents from respondent No.1 to prove the plea of discharge. He did not also reply to the statutory notice served on him. Nothing is brought out to disbelieve evidence of PW1. In the circumstances there is no reason to interfere with finding of the courts below regarding execution of the cheque. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and payment of fine of Rs.185000/-. Default sentence of imprisonment for one month was also provided. Learned Additional Sessions Judge modified the sentence as simple imprisonment till rising of the court. There was also a direction for payment of compensation of Rs.1,34,000/- to respondent No.1 but without providing default sentence. There is no reason to interfere with the sentence and direction for payment of compensation as modified by the appellate court. Learned counsel requested that petitioner may be granted six months' time to pay the compensation. 4. Courts are authorised to impose default sentence for non payment of compensation. That is not part of the sentence but, a mode of enforcement of direction for payment of compensation. Learned Additional Sessions Judge should have imposed default sentence while directing payment of compensation. I have heard counsel for petitioner on the illegality committed by learned Additional Sessions Judge. Section 357(4) of the Code of Criminal Procedure enabled revisional court to direct payment of compensation. Crl.R.P.No.2404 of 2009 3 Necessarily it takes into the power to impose default sentence also. It is true that this is a revision filed by petitioner/accused and hence there cannot be an enhancement of sentence in that revision. But, direction for payment of compensation or default sentence does not form part of the sentence. Hence imposing default sentence for non payment of compensation will not amount to enhancement of sentence. In the facts and circumstances of the case petitioner is granted time till 30-12-2009 to deposit compensation. In case of default petitioner has to undergo simple imprisonment for three months. Resultantly this revision fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit compensation in the trial court as ordered by the appellate court. In case of failure petitioner has to undergo simple imprisonment for three months. 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 31-12-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/