IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.REV.PET.NO. 2542 OF 2009() --------------------------------------------- CRA.650/2005 OF II ADDL. SESSIONS COURT, TRIVANDRUM CC.581/2003 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------ C.P. AJITHKUMAR, S/O. PAREMESWARAN PILLAI, CHARUVILA, PUTHEN VEEDU, PURAVUR, CHIRAYINKEEZH, ATTINGAL, NOW RESIDING AT DIET QUARTERS NO.5, MRA LANE, NEAR GIRLS, HIGH SCHOOL, ATTINGAL. BY ADV. SRI.J.JAYAKUMAR RESPONDENT(S) - RESPONDENT - COMPLAINANT: ---------------------------------------------------------------- 1. NARAYAN PILLAI, S/O. PAREMESWARA KURUP, V.V. NIVAS, KADUVAYIL, ATTINGAL DESOM, ATTINGAL VILLAGE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2542 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of August, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor takes notice for respondent No.1. 2. This revision arose from judgment of learned Judicial First Class Magistrate-I, Attingal in C.C. No.581 of 2003 and learned Additional Sessions Judge, Thiruvananthapuram in Crl.Appeal No.650 of 2005 in a prosecution for offence punishable under Section 138 of the Negotiable Instruments Act. 3. According to respondent No.1, petitioner borrowed Rs.80,000/- from him on 2.5.2003 and issued Ext.P1, cheque dated 15.5.2003. That cheque was dishonoured for insufficiency of funds which is proved by Ext.P2. Respondent No.1 issued statutory notice to petitioner intimating dishonour and demanding payment which is proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and stated to his case. Case of petitioner is that his wife borrowed Rs.25,000/- from respondent No.1 and at that time a blank cheque signed by him was obtained as security. It is further contended that the said amount was paid to respondent No.1 but he misused the CRL. R.P.No.2542 of 2009 -: 2 :- signed blank cheque. 4. On the contention that petitioner had given signed blank cheque to respondent No.1 what is available is only the suggestion put to respondent No.1 which he denied. There is no evidence or circumstance to show that wife of petitioner had borrowed any amount from respondent No.1 or repaid the same. Petitioner did not care to send reply to the notice served on him. It is admitted that Ext.P1 is signed by petitioner and drawn on the account maintained by him. It is also not disputed that there was financial transaction involving himself and respondent No.1 and the cheque was given in that connection. There is no reason to disbelieve the version of P.W.1. Courts below are justified in finding in favour of due execution of the cheque. I find no reason to interfere with that finding. Petitioner failed to rebut the presumption under Sec.139 of the Act. 5. Sentence and direction for payment of compensation were modified by the appellate court. As it now stands petitioner is sentenced to undergo simple imprisonment for one month. There is also a direction for payment of compensation of Rs.80,000/- to respondent No.1 and default sentence of imprisonment for ten days was also provided. It is submitted by counsel that sentence imposed is CRL. R.P.No.2542 of 2009 -: 3 :- excessive. It is also submitted by learned counsel that compensation has been paid to respondent No.1. A document evidencing payment is also produced. But since the matter is being disposed of without notice to respondent No.1, I am not going into the correctness of that document at this stage. Having regard to the nature of the offence I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. Petitioner is permitted to pay the compensation to respondent No.1 directly and is granted time till 28.8.2008 for the same. 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 28.8.2009 to deposit the compensation in the trail court as ordered by the appellate court. In case of failure to deposit compensation petitioner shall undergo simple imprisonment for one month. CRL. R.P.No.2542 of 2009 -: 4 :- (iii) It is made It is made clear that it shall be sufficient compliance of the direction for payment of compensation if petitioner has already paid or pays 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 acknowledging receipt of the compensation within the aforesaid period. Petitioner shall appear in the trial court on 29.8.2009 to receive the sentence. Until then warrant if any against petitioner will be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv