IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 Crl.Rev.Pet.No. 2254 of 2009 ------------------------------ CRA.666/2006 of SESSIONS COURT, KOTTAYAM CC.549/2005 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- V.M.GOPALAKRISHNAN NAIR, SMITHA BHAVAN, PAMPADY SOUTH KARA, PAMPADY VILLAGE, KOTTAYAM. BY ADV. SRI.T.MADHU RESPONDENT/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.S.BALACHANDRAN NAIR, KARANIYIL HOUSE, PAMPADY VILLAGE, PAMPADY KARA. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2254 of 2009 --------------------------------------- Dated this 13th day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in criminal appeal No.666 of 2006 confirming conviction of petitioner for offence punishable under Sec.138 of Negotiable Instruments Act but modifying the sentence. 2. Respondent No.2 filed complaint alleging that petitioner owed Rs.52,000/- to respondent No.2 and issued Ext.P1, cheque dated 05-04-04 for repayment of the said amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2, P3 and P7. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.2 gave evidence as PW1 and stated about the alleged transaction leading to execution of the cheque. According to the petitioner, he had borrowed Rs.5000/- from one Anilkumar and given signed blank cheque as security. He paid Rs.8000/- to Anilkumar but Anilkumar demanded a further sum of Rs.1000/- for returning the cheque. He could not obliged. That signed blank cheque is misused. To respondent No.2 it was suggested when he was in the box that petitioner borrowed Rs.25,000/- from the said Anilkumar and gave signed blank cheque. Court below did not accept that explanation. Regarding execution of the cheque there is evidence of PW1. Petitioner merely suggested that the cheque was given to Anilkumar . He did not produce any evidence, nor is there any circumstance to think that the cheque happened to be in the custody of respondent No.2 in the circumstances stated by petitioner. He did not also reply to the statutory notice. In these circumstances I do not find reason to interfere with the finding entered by the courts below regarding due execution of the cheque. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed him to pay compensation of Rs.52000/- with default sentence of imprisonment for one month. Appellate court modified the sentence as fine of Rs.52000/- and default sentence of imprisonment for one month was provided. It was also directed that fine if realised will be given to respondent No.2 as compensation. It is submitted by learned counsel for petitioner that fine may be converted as compensation payable to respondent No.2 directly and that petitioner may be granted six months' time to deposit compensation. 4. Revisional court has the power to exercise such powers as a court of appeal could exercise in an appeal from conviction and sentence. In Radhakrishnan V Padmanabhan (2000 (2) KLT 349) this court considered whether it was within the power of the court of appeal while hearing an appeal from conviction and sentence to convert a sentence of fine as simple imprisonment till rising of the court with direction for payment of compensation. This court held that it is only a modification of the sentence and did not amount to any enhancement of sentence. Viewed in that line, I am inclined to think that providing simple imprisonment till rising of the court and directing payment of compensation will not amount to enhancement of sentence and hence, this court while exercising revisional power is competent to modify the sentence accordingly. Considering the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court and payment of compensation to respondent No.2 is sufficient in the ends of justice. Considering the amount involved and the circumstances stated by learned counsel petitioner is granted time till 30.12.09 for payment of compensation. In case of failure he has to undergo simple imprisonment for two months. Resultantly this revision is allowed in part to the following extent: 1.Sentence of fine awarded by the appellate court is set aside. 2.Petitioner is sentenced to undergo simple imprisonment till rising of the court. 3.Petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.52000/- (Rupees Fifty Two Thousand Only) by way of compensation under Sec.357(3) of the Code of Criminal Procedure on or before 30-12-09 failing which petitioner has to undergo simple imprisonment for two months. 4.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.2 through his counsel in the trial court and respondent No.2 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/