IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 Crl.Rev.Pet.No. 2657 of 2009() ------------------------------ CRA.1085/2007 of III ADDL.SESSIONS COURT, KOZHIKODE ST.2377/2005 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ K.GOPINATHAN, AGED 49 YEARS, S/O. CHOYIKUTTY, THEKKEKILI PARAMBA, ANNIE HALL ROAD, CALICUT-673 002, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SRI.K.K.KRISHNA KUMAR RESPONDENT: ------------------- 1. BANK OF INDIA, CALICUT-BEYPORE BRANCH, REPRESENTED BY ITS BRANCH MANAGER, K.KORAN, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.C.S.HRITHIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2657 of 2009 --------------------------------------- Dated this 18th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned 3rd Additional Sessions Judge, Kozhikode in Criminal Appeal No.1085 of 2007 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the N I Act”). According to respondent No.1 which is a banking company, petitioner availed loan of Rs.25000/- from it on 20-10-2003 with one Ranganadhan as guaranteer and executed demand promissory note, agreement of hypothecation and letter of instalment in favour of respondent No.1. Petitioner agreed to repay the amount in sixty instalments of Rs.1177/- each. Petitioner did not pay the amount. For discharge of liability to the due of Rs.23545/- petitioner issued Ext.P5, cheque dated 20-05-2005. That cheque was dishonoured for insufficiency of funds as seen from Ext.P8. Service of statutory notice on petitioner is proved by Exts.P7 to P9. PW1 gave evidence on behalf of respondent No.1 and testified to its case. Contention raised by petitioner is that he had no transaction with respondent No.1. One Crl.R.P.No.2657 o f2009 2 Sherin agreed to arrange loan for him and on the request of Sherin, he signed papers in the bank (respondent No.1). He also gave five signed blank cheques. After two months Sherin paid Rs.24000/- to the petitioner. Petitioner produced Ext.D1, cheque for Rs.44100/- said to be issued by the said Sherin in his favour. Exts.D2 to D8 are also marked on the side of petitioner. Courts below found against contention raised by petitioner. It is contended by learned counsel that finding regarding due execution of the cheque is not correct. According to learned counsel, there is no evidence to prove the actual liability if any, of petitioner. 3. Exts.P1 to P3 are the application for loan, demand promissory note and agreement of hypothecation which according to respondent No.1 are executed by petitioner. That, Exts.P1 to P3 contained the signature of petitioner is not disputed. Even as per his version, he had been to the bank along with Sherin and signed the relevant papers. The contention now advanced is that it was Sherin who had received the amount, a portion of which was given to petitioner also. It is to support that contention that Ext.D1 is produced. Ext.D1 does not in any way effect the case of respondent No.1. Ext.D2 is the copy of notice served on petitioner from respondent No.1. There is reference to the cheque leaf immediately prior to Ext.P5 dated 20- 05-2005. In Ext.D2, the amount claimed is Rs.17613/-. To that notice Crl.R.P.No.2657 o f2009 3 petitioner send a reply, a copy of which is Ext.D3 wherein also similar contention was raised. According to the learned counsel there is no possibility of petitioner issuing the cheque thereafter. 4. Evidence on record revealed that petitioner has availed loan from respondent No.1. It is true that the statement of account is not produced by respondent No.1. But I must bear in mind that this is not a suit for recovery of money based on original cause of action. The transaction is proved by Exts.P1 to P3 and evidence of PW1. Even if it is assumed that signed blank cheque was given it was well within the power of respondent No.1 to present the same for the amount actually due. Petitioner did not produce any document, nor take any steps to summon the relevant documents from respondent No.1 if he has a contention that no amount as stated in Ext.P5 was due as on 20-05- 2005. courts below considered the evidence and found in favour of due execution of the cheque. Presumption under section 139 of the N I Act follows. Petitioner has not succeed in rebutting that presumption. Conviction of petitioner therefore does not require interference. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one week. There is also a direction for payment of Rs.23545/- by way of compensation to respondent No.1 but without providing any default sentence. It is contended by learned counsel that substantive sentence awarded to the petitioner is excessive. Crl.R.P.No.2657 o f2009 4 Learned counsel has also requested that petitioner may be granted six months time to pay compensation directly to respondent No.1. 6. Having regard to the nature of offence and amount involved I am satisfied that deterrent punishment is not required and that sentence of simple imprisonment till rising of the court is sufficient in the ends of justice. There is no scope for interference with the direction for payment of compensation at the instance of petitioner. The courts are invested with power to award default sentence in case of non payment of compensation. Since compensation itself is not part of the sentence, revisional court also can award default sentence and that cannot amount to enhancement of sentence. I have found that the substantive sentence awarded to the petitioner could be modified as simple imprisonment till rising of the court. Having regard to the amount involved I direct that petitioner has to undergo simple imprisonment for one month in case compensation is not deposited/paid. Considering the difficulties of petitioner expressed by learned counsel, I am inclined to grant petitioner time till 21-12-2009 to deposit/pay compensation. Resultantly this revision petition is allowed in part to the following extent: 1. substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.2657 o f2009 5 2. Petitioner is granted time till 21-12-2009 to deposit compensation in the trial court as ordered by that court. In case of failure petitioner has to undergo simple imprisonment for one month. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 compensation within the period aforesaid. 4. If petitioner has deposited any amount by way of compensation in the court below it is open to the petitioner to withdraw the said amount. 5. Petitioner shall appear in the trial court on 22-12-2009 to receive the sentence. Until 22-12-2009 execution of warrant if any against the petitioner will stand in abeyance. THOMAS P JOSEPH, JUDGE Sbna/