IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 2235 of 2009() ------------------------------ CRA.977/2007 of SESSIONS COURT, TRIVANDRUM ST.2034/2006 of JUDICIAL FIRST CLASS MAGISTRATE-III, NEDUMANGADU .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- VIJAYAN.J.,S/O.JAMES, THELLANITHALA VEEDU,VALIYARA, VELLANADU P.O.,NEDUMANGADU. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD.,REP.BY ITS BRANCH MANAGER-SRI.S.KUMAR. PUBLIC PROSECUTOR SRI.K.G.RADHAKRISHAN,SC,TVM.DIST.CO.OP. FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2235 of 2009 -------------------------------------- Dated this the 10th day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. 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 it. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-III, Nedumangad in S.T.No.2034 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a private complaint preferred by respondent No.2, Thiruvananthapuram District Co-operative Bank. Case is that petitioner availed a loan from the bank undertaking to repay the amount in instalments but failed to do so and for the balance sum of Rs.19,458/- petitioner issued Ext.P1, cheque dated 31.6.2006. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. According to the petitioner at the time he availed the loan some signed blank cheques and papers were obtained from him and that was misused. 3. Manager of respondent No.2 has given evidence as PW1. He stated that petitioner availed a loan of Rs.20,000/- under Asraya Scheme on 27.6.2005 and in that transaction Rs.19,498/- is due from the petitioner. That evidence of PW1 is supported by Ext.P6, statement of loan account. Courts Crl.R.P.No.2235/2009 2 below found that there is no reason to disbelieve the evidence of PW1 in the light of Exts.P1 and P6. There is no reason to think that petitioner has been falsely implicated making use of the signed blank cheques as claimed by him. There is no reason to interfere with the concurrent finding of the courts below regarding due execution of the cheque for discharge of a legally enforceable debt/liability.. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for fifteen days. There was also a direction for payment of compensation of Rs.19,500/- to respondent No.2 with default sentence of imprisonment for ten days. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Instead of compensation, petitioner was directed to deposit fine of Rs.19,500/- and in default of payment to undergo simple imprisonment for two months. Learned counsel submits that petitioner has deposited Rs.5,000/- with respondent No.2 on 3.12.2008. Counsel requested that fine may be converted as compensation and two months’ time may be granted to deposit compensation. 5. Considering the nature of offence I am satisfied that instead of sentence of fine it is sufficient to direct to pay compensation of Rs.19,500/-. Considering the difficulty of the petitioner expressed by the learned counsel, petitioner is granted two months’ time to deposit such compensation. If any amount has been paid by the petitioner, respondent No.2 has to adjust such Crl.R.P.No.2235/2009 3 amount in the compensation payable. Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence awarded as modified by the appellate court, sentence of fine is set aside and instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.19,500/- by way of compensation under Section 357(3) of the Code of Criminal Procedure. Amount if any deposited in any of the courts below can be adjusted in the compensation payable. Such amount if any in deposit can be withdrawn by respondent No.2. ii. Petitioner is granted two months’ time to deposit compensation in the trial court. In case of failure, petitioner has to undergo simple imprisonment for two 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.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the said period of four months. Crl.R.P.No.2235/2009 4 Petitioner shall appear in the trial court on 14.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 14.9.2009. THOMAS P.JOSEPH, Judge. cks