IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 CRL.REV.PET.NO. 2314 OF 2009() ----------------------------------------------- CRA.1118/2008 OF II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM ST.292/2006 OF JUDICIAL FIRST CLASS MAGISTRATE-VI THIRUVANANTHAPURAM .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: -------------------------------------------------------------- N.K. VIKRAMAN, S/O. NARAYANAN, CLERK, BANK OF BARODA, PALAYAM BRANCH, THIRUVANANTHAPURAM. BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT(S) - RESPONDENTS - COMPLAINANT & STATE: --------------------------------------------------------------------------- 1. K. SOMAN, NELLIVILA VEEDU SARASAN LANE, KARAKULAM P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2314 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of July, 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.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Thiruvananthapuram in Crl. Appeal No.1118 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. 3. Case arose on a private complaint preferred by respondent No.1. He alleged that petitioner borrowed Rs.1,50,000/- from him and issued Ext.P1, cheque dated 16.10.2004 for repayment of the said amount. That cheque was dishonoured for insufficiency funds as seen from Ext.P2. Issue and service of notice on petitioner are proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and stated to his case. According to the petitioner, of the amount borrowed he repaid Rs.50,000/- and the balance amount was paid through Sukumara Panicker, brother-in-law of respondent No.1. The signed blank cheque given at the time of the transaction was misused. Petitioner did not adduce evidence in support of his contention. CRL. R.P. No.2314 of 2009 -: 2 :- Respondent denied the suggestion in that regard. Petitioner did not reply to the statutory notice served on him. Courts below held that there is no reason to disbelieve the evidence of P.W.1 and found in favour of due execution of the cheque. On going through the judgments under challenge and hearing counsel, I do not find reason to interfere with the conclusion reached by the courts below. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for five months with a direction to pay Rs.1,50,000/- as compensation to respondent No.1 and in case of failure to undergo simple imprisonment for one month. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. Compensation was converted as fine of Rs.1,50,000/-. Default sentence of simple imprisonment for one month was also provided. It is further directed that fine if realised will be given to respondent No.1 as compensation. Having regard to the nature of offence and amount involved I do not find reason to interfere with the substantive sentence as modified by the appellate court. Learned counsel for petitioner requested that sentence of fine may be converted as compensation payable directly to respondent No.1. Counsel also sought time till December, 2009 to deposit fine. Having regard to the nature of offence and object of legislation I am inclined to accept the request. Fine can be converted as compensation payable to respondent No.1. CRL. R.P. No.2314 of 2009 -: 3 :- Resultantly, this revision is allowed in part to the following extent: While retaining the substantive sentence awarded by the appellate court, sentence of fine is set aside and instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 as compensation Rs.1,50,000/- (Rupees One lakh and fifty thousand only) under section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner shall undergo simple imprisonment for one month. It is made clear that it shall be sufficient compliance with the direction for payment 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 compensation within the said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner shall be kept in abeyance. THOMAS P.JOSEPH, JUDGE. vsv