IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.Rev.Pet.No. 1591 of 2009() ------------------------------ CRA.541/2004 of ADDL. SESSIONS COURT FAST TRACK COURT NO.II, PALAKKAD CC.304/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ RAJAN.T, S/O. SANKUNNI NAIR, ROYAL BAKERY, KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. NEELIMA FINANCE PRIVATE LIMITED, COIMBATORE, 11/463, HARIJIKKARATHERUVU, PALAKKAD, REP. BY ITS MANAGING DIRECTOR V. EASWARADAS, S/O. GOVINDANKUTTY. R1 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1591 of 2009 -------------------------------------- Dated this the 22nd 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. Judgment of learned Additional Sessions Judge, Fast Track II, Palakkad in Crl.Appeal No.541 of 2008 is under challenge in this revision at the instance of the petitioner/accused. He was convicted by the trial court for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and sentenced to undergo simple imprisonment for six months. There was a direction for payment of Rs.1,50,000/- as compensation and a default clause in case of non-payment of compensation. 3. Case of respondent No.2 is that petitioner and one Sunil borrowed Rs.1,50,000/- from him under a demand promissory note (Ext.P1) on 4.12.2002 and to discharge the debt, petitioner issued Ext.P2, cheque for the said amount. That cheque was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment of the amount, petitioner did not pay the amount. Hence the complaint. Managing Director of Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P7. petitioner gave evidence as DW1 and proved Exts.D1 to D4. According to the petitioner, he had borrowed only Rs.30,000/- as per demand promissory note on 15.5.2001 and the signed blank Crl.R.P.No.1591/2009 2 cheque given as security was misused. 4. It is contended by the learned counsel for petitioner that due execution of the cheque is not proved and that at any rate presumption under Section 139 of the Act is rebutted by evidence of DW1 and Exts.D1 to D4. 5. Ext.P1 is the demand promissory note dated 4.12.2002 for Rs.1,50,000/- executed by the petitioner and one Sunil. Execution of Ext.P1 is not disputed and is proved by the evidence of PW1. According to respondent No.1, it is to discharge that debt petitioner issued Ext.P2, cheque. That, petitioner had transaction with respondent No.1 is not disputed by the petitioner his claim being that he borrowed only Rs.30,000/-. But Ext.P1, demand promissory note which is not disputed is for Rs.1,50,000/-. Ext.D1 is the ledger extract of respondent No.1 for payment of Rs.30,000/- to the petitioner on 30.4.2001 as per a cheque. But it is not shown that Ext.D1 related to the transaction referred to in Ext.P1. Moreover, Ext.D3 shows that the loan as per demand promissory note is as per account No.386 of 2001 while Ext.P1 is dated 4.12.2001. Ext.D2 series are not shown to be in respect of Ext.P1 transaction. DW1 admitted that respondent No.1 had issued another passbook before 26.1.2001 (Ext.P1 being on 4.12.2001). Thus it is clear that petitioner had other transactions also with respondent No.1. Therefore, the contention that Ext.D1 related to the transaction in question cannot be accepted. Due execution of Exts.P1 and P2, demand promissory note and cheque is proved. There is the evidence of PW1 regarding the transaction. A further fact that is to be noted is that inspite of service of notice of dishonour and demand for payment of the Crl.R.P.No.1591/2009 3 amount, petitioner did not respond by a reply notice. In these circumstances, courts below are justified in holding in favour of due execution of the cheque. Petitioner has not succeeded in rebutting the presumption under Section 139 of the Act. 6. Learned counsel pleaded that sentence imposed is excessive. Apart from awarding compensation, trial court sentenced the petitioner to undergo simple imprisonment for six months. Appellate court modified the substantive sentence to imprisonment for three months while retaining the direction for payment of compensation. Considering the object of legislation and nature of offence, there is little reason to interfere with the direction for payment of compensation. So far as substantive sentence is concerned, in the facts and circumstances of the case I am satisfied that simple imprisonment till rising of the court will be sufficient punishment in the ends of justice. 7. At this stage counsel for petitioner requested for five months’ time to deposit the compensation. In the facts and circumstances of the case, I am inclined to grant two months’ time from this day to deposit the compensation. Resultantly, this revision is allowed in part and the sentence is modified as follows: 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. Crl.R.P.No.1591/2009 4 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 aforesaid time 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.4818 of 2009 of 2009 will stand dismissed THOMAS P.JOSEPH, Judge. cks