IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 2475 of 2009() ------------------------------ CRA.825/2007 of ADDL.SESSIONS COURT, KOTTAYAM ST.132/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- SHIVASANKARAN, THEKKEDATHU HOUSE, PANACHIKAVU, PERUNNA, CHANGANASSERY, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. BABY KURUVILLA, PALLITHANAM(KARTHIKA), MADAPPALLY P.O., CHANGANASSERY, KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2475 of 2009 -------------------------------------- Dated this the 3rd 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. Public Prosecutor takes notice for respondent No.2. 2. The concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of a legally enforceable debt/liability is under challenge in this revision. Petitioner was convicted by learned Judicial First Class Magistrate-II, Changanassery for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) and sentenced to undergo simple imprisonment for three months. There was a direction for payment of compensation of Rupees one lakh. A default sentence of imprisonment for one month was also ordered. Petitioner challenged the conviction and sentence in the court of learned Additional Sessions Judge, Kottayam . His conviction was confirmed but sentence was modified. Petitioner has come up in revision. 3. According to respondent No.1, petitioner owed Rupees one lakh to him and for discharge of that liability issued Ext.P1, cheque dated 7.7.2004. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. According to Crl.R.P.No.2475/2009 2 the petitioner he had given a signed blank cheque as security but he did explain the circumstances under which he happened to issue a blank cheque. Courts below found no reason to disbelieve the evidence of respondent No.1 and accepted it. It is not disputed that Ext.P1 contained the signature of petitioner and is drawn on the account maintained by him. Petitioner has no explanation as to how else the cheque happened to be in the custody of respondent No.1. Petitioner has also not replied to the statutory notice served on him. In these circumstances I find no reason to interfere with the concurrent finding entered by the courts below as to the due execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the conviction of petitioner. 4. Learned counsel requested that fine may be converted as compensation payable to respondent No.1 directly. Learned counsel also requested that considering the financial difficulties being experienced by the petitioner he may be granted six months' time to deposit compensation. Having regard to the circumstances stated, I am inclined to think that sentence of fine can be converted as compensation payable to respondent No.1. In case of failure to deposit compensation, petitioner has to undergo simple imprisonment for three months. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court. Crl.R.P.No.2475/2009 3 Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 Rupees one lakh as compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner has to undergo simple imprisonment for three months. ii. 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 the compensation within the above said time. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks