IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 1679 of 2009() ----------------------------------------- ST.123/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, VATAKARA CRA.405/2007 of ADDL. DISTRICT AND SESSIONS COURT, VADAKARA .................... REVN. PETITIONER/APPELLANT/ ACCUSED: -------------------------------------------------------------- RAJEEVAN. P.P., AGED 38 YEARS, S/O. CHANDRAN, PARAYULLAPARAMBTAH HOUSE, NADAKKUTHAZHA AMSOM, MEPPAYIL DESOM, VATAKARA TAULK, KOZHIKODE DISTRICT, KEARLA STATE. BY ADV. SRI.P.ABDUL JALEEL RESPONDENT/RESPONDENT/ COMPLAINANT AND STATE: ---------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KUNNATH MOHANAN, AGED 42 YEARS, S/O. ANDI MASTER, KUNNATH HOUSE, CHEMMARATHUR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. SRI. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ----------------------------------- Crl.R.P.No.1679 of 2009 --------------------------------- Dated this the 28th day of May, 2009 O R D E R Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in the revision petition and which is not prejudicial to respondent No.2. Learned Public Prosecutor takes notice for respondent No.1. 2. This revision arose on a private complaint filed by respondent No.2. Case is that respondent No.2 arranged on his responsibility for the petitioner to purchase gold ornaments on credit from a jewelery shop at Vadakara of which respondent No.2 is also a partner. Petitioner purchased gold ornaments and thus owed Rs.1,28,000/- to respondent No.2. For discharge of that liability petitioner issued Ext.P1, cheque dated 3.12.2003. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.2 issued statutory notice to the petitioner on 20.12.2003. Petitioner received the notice but he did not pay the amount. Issue and service of notice are proved by Exts.P4 to P6. Respondent No.2 gave evidence as Crl.R.P.No.1679 of 2009 2 PW1 and testified to his case. Case pleaded by the petitioner is that he had given signed blank cheques to respondent No.2 to arrange finance and one of those cheques has been misused. It is contended by learned counsel that the courts below were not correct in holding that petitioner issued cheque for discharge of a legally enforceable debt/liability. 3. In proof of the liability, respondent No.2 has produced Exts.P7 to P10, all relating to purchase of gold ornaments by the petitioner from the jewelery shop. Ext.P8 is produced to show that respondent No.2 is a partner of the firm which runs that jewelery shop. Case of respondent No.2 regarding the transaction and liability of the petitioner are proved. There is no evidence to show that in the circumstances pleaded by the petitioner he handed over any signed blank cheque to respondent No.2. Moreover he did not reply to the notice served on him. In the circumstances courts below cannot be found fault with for accepting case of respondent No.2. I do not find reason to interfere with the conviction. Crl.R.P.No.1679 of 2009 3 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for 6 months and directed him to pay compensation of Rs.1,28,000/- to respondent No.2. The sentence was confirmed by the appellate court. Learned counsel for petitioner requests that leniency may be shown to the petitioner. 5. Considering the facts and circumstances of the case and the nature of the offence and object of legislation, there is no reason to interfere with the direction to pay compensation. But I am inclined to modify the substantive sentence to simple imprisonment till rising of the court. 6. Counsel for petitioner requests that three months' time may be granted to the petitioner to deposit the compensation. Considering the amount involved, I am inclined to grant the request. In the result, this revision is allowed in part in the following lines. 1) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.1679 of 2009 4 2) Petitioner is granted three months' time to deposit compensation in the trial court as ordered by the courts below. 3) It is made clear that it will be sufficient compliance of condition No.2, if petitioner paid the compensation to respondent No.2 through his counsel in the trial court and respondent No.2 files a statement in that court through his counsel acknowledging receipt of the amount within the said period of three months. 4) Petitioner shall appear in the court below on 7.9.2009 to receive the sentence. Crl.M.A.No.5115/2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. bkn/-