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. 2619 OF 2009() ------------------------------ CRA.244/2006 OF ADDL.SESSIONS COURT (ADHOC), KASARAGOD CC.487/2005 OF JUDICIAL FIRST CLASS MAGISTRATE-II, KASARGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- P.I.BASHEER, AGED 48 YEARS, S/O.MASTHAN IBRAHIM, PROPRIETOR, OF P.I.B.SOUNDS, PANALAM HOUSE, NAIMARMOOLA, CHENGALA VILLAGE AND POST, KASARAGOD DISTRICT. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): COMPLAINANTS --------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.AMARUDHEEN, AGED 43 YEARS, S/O.KUNHAMMED, KANDAL KODI HOUSE, BADOOR VILLAGE AND POST, KASARAGOD TALUK. 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.2619 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Kasargod in Crl. Appeal No.244 of 2006 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.2, petitioner issued Ext.P7, cheque dated 14.1.2003 for discharge of a liability to the tune of Rs.40,000/-. That cheque was dishonoured for insufficiency of funds and payment was stopped as proved by Exts.P8, P11 and P12. Respondent No.2 issued statutory notice to the petitioner intimating dishonour and demanding payment which is proved by Exts.P9 and P10. Respondent No.2 gave evidence as P.W.1 and stated to his case. He claimed that petitioner had borrowed money from Harees Shamnad and issued a cheque for Rs.4,00,000/-. On dishonour of that cheque Harees Shamnad filed O.S.No.89 of 2001 for realisation of the amount. Movables belonging to the petitioner were attached. He convinced his creditors and the matter was settled and agreement was executed for payment of the amount. Compromise petition was filed in O.S. No.89 of 2001 and the suit was dismissed. Respondent No.2 claimed that Ext.P7 was issued CRL. R.P. No.2619 of 2009 -: 2 :- to him for the discharge of the liability to the tune of Rs.40,000/-. Exhibit P4 is the copy of agreement stated to be executed by petitioner and others. Exhibit P5 is the compromise petition filed in O.S. No.89 of 2001 and Ext.P6 is the copy of judgment based on that compromise. Courts below accepted the evidence of respondent No.2 and found the petitioner guilty. It is contended that conviction is not legal or proper. 2. According to the petitioner, respondent No.2 and his relatives were running a financing business through him and he was getting nominal commission. Respondent No.2 presented the cheque taken from hims as security. It is not disputed that there was a civil suit between petitioner and Harees Shamnad. Suit was filed against petitioner for realisation of Rs.4 lakhs. The movables of petitioner were attached vide order on I.A. No.819 of 2001 (in O.S. No.89 of 2001). This is proved by Ext.P2. Exhibit P3 proves the decision taken in the mediation that followed. Exhibit P4 is the agreement executed between petitioner, respondent No.2 and others. Petitioner permitted respondent No.2 to withdraw Rs.40,000/- each every month to discharge the liability from 04.02.2002 onwards as per Ext.P3 agreement. It is admitted by petitioner that Ext.P7 is signed and drawn on his account. It is true that according to respondent No.2 also CRL. R.P. No.2619 of 2009 -: 3 :- petitioner had pursuant to Ext.P3 agreement given signed blank cheques. Learned magistrate observed from Exts.P3 and P4 that it gave implied authority for respondent No.2 to fill up the signed blank cheque for Rs.40,000/- every month and present the same. Exhibits P1 to P7 and evidence of P.W1 proved the case of respondent No.2. Petitioner has not also replied to the notice served on him. In the circumstances there is no reason to interfere with the findings of the courts below regarding execution of the cheque for discharge of liability and failure of petitioner to rebut the presumption appearing against him. Conviction calls for no interference. 3. Learned magistrate while sentencing petitioner to undergo simple imprisonment for three months directed him to deposit Rs.40,000/- as compensation for payment to respondent No.2. In default of payment sentence of simple imprisonment for one month also was provided. Appellate court did not interfere with the substantive sentence, direction for payment of compensation or the default sentence. In this case request is to grant petitioner time to deposit compensation. lt is also requested that substantive sentence may be modified. According to learned counsel petitioner is not able to raise the amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved I find no reason CRL. R.P. No.2619 of 2009 -: 4 :- to interfere with the direction for payment of compensation or the default sentence. However, considering the nature of offence substantive sentence can be modified as simple imprisonment till rising of the court. Petitioner is granted time till 13.01.2010 to deposit compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 13.01.2010 to deposit compensation in the trial court as ordered by the learned magistrate. In case of failure petitioner shall undergo simple imprisonment for three months. (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.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 CRL. R.P. No.2619 of 2009 -: 5 :- compensation within the said period. Petitioner shall appear in the trial court on 14.01.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv