IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.REV.PET.NO. 2625 OF 2009() -------------------------------------------- CRA.148/2008 OF SESSIONS COURT, KASARAGOD CC.129/2008 OF JUDICIAL FIRST CLASS MAGISTRATE (ADDL. MUNSIFF) KASARGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- MOHAMMED ASHRAF, AGED 36 YEARS,S/O.SEETHIKUNHI, PADALADUKKAU (H),MUGU P.O.,BADOOR VILLAGE, KUMBLA (VIA),KASARAGOD TALUK & DISTRICT. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): RESPONDENTS/COMPLAINANTS -------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. M/S.MANAPPURAM GENERAL FINANCE AND LEASING LTD.,KASARAGOD BRANCH, REP.BY SUBHASH P.,AGED 25 YEARS, DIVISIONAL MANAGER,KASARAGOD DIVISION. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2625 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009 O R D E R -------------- Petitioner faced trial in the court of learned Judicial First Class Magistrate-II (Additional Munsiff), Kasargod in C.C. No.129 of 2008 for offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty, convicted and sentenced to undergo simple imprisonment for three months. There was a direction for payment of compensation with default sentence of imprisonment for one month. Appellate Court while confirming conviction retained the direction for payment of compensation and default sentence but modified the substantive sentence. Petitioner is aggrieved and has come up in revision. It is contended that conviction and sentence are not legal or proper. According to respondent No.2, petitioner issued Ext.P1, cheque dated 2.6.2007 for Rs.22,916/- for discharge of that liability. Exhibits P2 and P3 are produced to show that the cheque was dishonoured for insufficiency of funds. Exhibits P4 to P6 are produced to show that statutory notice issued to the petitioner was returned unclaimed though intimation was given to the petitioner. Power of Attorney of respondent No.2 gave evidence as P.W1. Exhibit P7 is the Power of Attorney. Petitioner when questioned under Section 313 of CRL. R.P. No.2625 of 2009 -: 2 :- the Code of Criminal Procedure stated that he discharged the entire liability and proved Ext.D1, payment book. P.W.1 admitted Ext.D1 but claimed that entire liability is not discharged and it is for the balance sum of Rs.22,916/- that petitioner issued the cheque. That contention of respondent No.2 was accepted by the courts below. Since petitioner has raised the plea of discharge it is for him to prove that. Petitioner has not proved or probabilised the plea of discharge. In this revision request is only to modify the substantive sentence and to grant time to deposit compensation. It is also requested that since petitioner is unable to raise the amount immediately on account of financial difficulties he may be granted four months' time to deposit compensation. 2. Having regard to the nature of offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction regarding payment of compensation or default sentence, at the instance of petitioner. Petitioner is granted time till 14.12.2009 to deposit compensation. Resultantly, this revision petition is allowed in part to the following extent: CRL. R.P. No.2625 of 2009 -: 3 :- (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 14.12.2009 to deposit compensation in the trial court as ordered by the learned magistrate. (iii) It is made clear that it shall be sufficient compliance with 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 his counsel acknowledging receipt of the compensation within the said period. Petitioner shall appear in the trial court on 15.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv