IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 1605 of 2009() ------------------------------ CRA.3/2008 of SESSIONS COURT, KASARAGOD CC.1081/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.NARAYANAN, S/O.KANNAN, PWD CONTRACTOR, PALLATHINGA, KUTTIKOLE P.O. AND VILLAGE, KASARAGOD. BY ADV. SRI.SOJAN MICHEAL SMT. DHANYA P. ASOKAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.NAMAGANESHAN, S/O.KUNJAPPA, NEAR NITHYANANDASRAM, HOSDURG, KANHANGAD. R1 BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1605 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make. 2. Heard counsel for petitioner and the Public Prosecutor. 3. Petitioner against whom there is a concurrent finding regarding commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) challenges that conviction and sentence as modified by learned Sessions Judge, Kasaragod in Crl.Appeal No.3 of 2008. 4. Case of respondent No.2 is that for discharge of debt to the tune of Rs.90,000/- due to him petitioner issued Ext.P1, cheque dated 30.4.2005 which was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment, petitioner did not pay the amount. Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P4. Dishonour of the cheque for the said reason is proved by Ext.P2. Issue and service of notice are proved by Exts.P3 and P4. These facts are not under challenge. When questioned under Section 313 of the Code of Criminal Procedure petitioner had no definite defence. The case set up by the petitioner when PW1 was in the box is that he had some transaction with one Gopi to whom a signed blank cheque was given and that was misused. That was denied by respondent No.2. Crll.R.P.No.1605/2009 2 5. Though it is contended by the learned counsel that the transaction as well as execution of cheque are not proved by proper evidence, in the facts and circumstances of the case I am not able to accept that contention. Respondent No.2 is a retired engineer of Kerala Water Authority and the petitioner is a contractor in the very same department. Respondent No.2 has given evidence regarding the transaction and execution of the cheque. In the circumstances courts below are justified in holding that petitioner has committed offence punishable under Section 138 of the Act. 6. Though trial court sentenced the petitioner to undergo simple imprisonment for six months and to pay Rs.90,000/- as compensation, appellate court modified the substantive sentence to simple imprisonment for one week while retaining the order for payment of compensation. Learned counsel requested that the substantive sentence may be modified and the petitioner may be granted four months' time to deposit the compensation. 7. In the facts and circumstances of the case, considering the nature of offence committed and object of legislation I am persuaded to think that simple imprisonment till rising of the court and payment of compensation as awarded by the courts below is sufficient in the ends of justice. Considering the amount involved, petitioner is granted two months' time to deposit the compensation in the trial court. Resultantly, this revision is allowed in part and the sentence is modified as follows: Crll.R.P.No.1605/2009 3 i. Substantive sentenced awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted two months’ time from this day to deposit the compensation in the trial court. In case of failure he shall undergo imprisonment as ordered by the courts below. iii. It is made clear that it will be sufficient compliance with direction No.ii if petitioner paid the 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 within the said period of two months acknowledging the receipt of the amount. iv. Petitioner shall surrender in the trial court on 28.7.2009 to receive the sentence. Crl.M.A.No.4852 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks