IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.Rev.Pet.No. 1631 of 2009() ------------------------------ CRA.24/2008 of SESSIONS COURT, ALAPPUZHA CC.560/2006 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------- SIVARAMAN, S/O. VAVA, AGED 55 YEARS, RESIDING AT PATHILCHIRA,PALLATHURUTHY, SNATHANAPURAM P.O., ALAPPUZHA. BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. PRABHAKARAN NAIR, AKKITHU MADOM, NEDUMUDY P.O., ALAPPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI RAVINDRAN BABUM FOR R2 ADV. SRI.C.S.MANU FOR R1 ADV. SRI.S.K.PREMRAJ FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1631 of 2009 -------------------------------------- Dated this the 26th day of May, 2009. ORDER Respondent No.1 appears through counsel. Public Prosecutor takes notice for respondent No.2. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a complaint preferred by respondent No.1 alleging that the cheque (Ext.P1) dated 15.1.2006 issued by the petitioner was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. 3. Case of respondent No.1 is that petitioner borrowed the amount from him and for discharge of that liability, issued Ext.P1, cheque dated 15.1.2006 which was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Respondent No.1 gave evidence as PW1 and testified to his case. Dishonour of the cheque for the said reason and issue and service of notice are proved by Exts. P2 to P5. These aspects are not under challenge. 4. Contention of the petitioner is that he was engaged in paddy business, while so the business went into loss and in respect of a transaction in connection with the business, he handed over two cheques to the Sub Crl.R.P.No.1631/2009 2 Inspector, Nedumudi. Petitioner though raised such a contention made no attempt to substantiate that. Failure to send a reply to notice is also material. Nothing was brought out to disbelieve the evidence of respondent No.1. It is admitted and proved that the cheque in question contained the signature of the petitioner and is drawn on the account maintained by him. In these circumstances courts below are justified in concluding that petitioner issued Ext.P1, cheque for discharge of the legally enforceable debt/liability. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Therefore, conviction is legal and proper and required no interference. 5. Substantive sentence awarded by the learned magistrate was modified by the appellate court as simple imprisonment till rising of the court. Fine of Rs.35,000/- was modified as Rs.25,000/-. In the facts and circumstances of the case I am inclined to think a direction for payment of compensation while retaining the substantive sentence of imprisonment till rising of the court is sufficient in the ends of justice Resultantly, this revision is allowed in part in the following lines: i. Sentence of fine awarded by the appellate court is converted as compensation of Rs.25,000/- (Rupees Twentyfive thousand only) which the petitioner shall deposit in the trial court for payment to respondent No.1 within three months’ from this day failing which, he shall undergo simple imprisonment for one month. ii. It is made clear that it will be sufficient compliance with direction No.i if petitioner paid the compensation to respondent No.1 through his Crl.R.P.No.1631/2009 3 counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging the receipt of the compensation within the aforesaid time. iii. Petitioner shall appear in the trial court on 28.8.2009 to receive the sentence. Crl.M.A.No.4961 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks