IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.Rev.Pet.No. 2560 of 2009() ------------------------------ CRA.396/2008 of ADDITIONAL SESSIONS COURT, ERNAKULAM CC.170/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- P.ABDUL JALEEL,AGED 65 YEARS, S/O.VEER MUHAMMED,THACHAKKARA,PAYYALLOOR.PO, KOLLENKODE-2 VILLAGE,CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.VIPIN NARAYAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------ 1. M.P.LAILA,D/O.PAREEKUTTY,MADAVANA VEEDU, VENGOLA.P.O,KUNNATHUNADU TALUK. 2. STATE OF KERALA,REPRESENTED BY P.PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07 /08 / 2009, THE COURT ON 07/08/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2560 of 2009 --------------------------------------- Dated this 07th 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 Additional Sessions Judge, Adhoc-2, Ernakulam in criminal appeal No. 396 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 is the divorced wife of son of petitioner. Her case is that at the time of her marriage with the son of petitioner she was given Rs.150000/- as her share in her paternal properties and that the said amount was entrusted to the son of petitioner. Later, differences of opinion arose between her and son of petitioner. Ultimately as per Ext.D1, agreement dated 24-08-2003 disputes were settled between the respondent No.1 and her husband, son of petitioner. As per that agreement son of petitioner was to return to Rs.150000/- to respondent No.1. It was also agreed that a sum of Rs.150000/- will be paid to respondent No.1 towards her future maintenance. For discharge of that liability petitioner issued three cheques, Exts.P1 to P3. Those cheques when presented were Crl.R.P.No.2560 of 2009 2 dishonoured for insufficiency of funds as proved by Ext.X1. Statutory notice was served on petitioner as proved by Exts.P4 to P7. In respect of Exts.P2 and P3, respondent No.1 filed S.T.No.1975 of 2004. In respect of Ext.P1, respondent No.1 filed C.C.No.170 of 2004 from which this revision arose. Both cases were tried jointly. Evidence was recorded in C.C.No.170 of 2004. Respondent No.1 gave evidence as PW1. Petitioner did not adduce any evidence except proving Ext.D1. Learned magistrate found that so far as Exts.P2 and P3 are concerned there is no consideration and acquitted petitioner (in S.T.No.1975 of 2004). So far as Ext.P1 is concerned, learned magistrate found that it is supported by consideration since petitioner had taken up responsibility to discharge the liability of his son as per Ext.D1, found petitioner guilty, convicted and sentenced him to undergo simple imprisonment for six months. He was directed to pay compensation of Rs.150000/- to respondent No.1. Default sentence of imprisonment of three months was also provided. Appellate court did not interfere with the conviction and sentence. Hence this revision. It is contended in this revision that due execution of the cheque is not proved. 3. It is not disputed that Ext.P1 with which this revision is concerned is signed by petitioner and drawn on his account. His contention is that for discharge of liability under Ext.D1, his son stealthily obtained the cheque and handed over the same to Crl.R.P.No.2560 of 2009 3 respondent No.1. It is true that petitioner sent a reply in that line but the mere fact that in reply to the statutory notice petitioner has taken up such contention itself is not sufficient. Nothing is brought out to show that it is in the circumstance pleaded by respondent No.1 that Ext.P1 came to the possession of respondent No.1. The liability of son of petitioner is not disputed and petitioner also is relying on Ext.D1. Evidence of respondent No.1 shows that petitioner took up the responsibility to discharge that liability and issued the cheque. Thus, it is proved that the cheque is supported by consideration. Dishonour of cheque for insufficiency of funds is proved. Courts below accepted the case of respondent No.1 which I find no reason to interfere with. Conviction of petitioner therefore does not require interference. 4. So far as sentence is concerned it is contended that it is excessive. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. According to learned counsel petitioner is unable to raise the entire amount immediately. Having regard to the nature of the 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 for payment of compensation or default sentence at the instance of petitioner. Considering the circumstances stated by learned counsel petitioner is granted time till 08-01-2010 for payment of compensation. Crl.R.P.No.2560 of 2009 4 Resultantly this revision 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. 2. Petitioner is granted time till 08-01-2010 to deposit the compensation in the trial court as ordered by that court. In the case of default, petitioner has to undergo default sentence as ordered by the trial court. 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 her counsel acknowledging receipt of compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 11-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 11-01-2010. THOMAS P JOSEPH, JUDGE Sbna/