IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 365 of 2009() ----------------------------- CRA.198/2007 of ADDL. SESSIONS COURT, (ADHOC COURT NO.1), PALAKKAD ST.592/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- K.R.GOPINATHAN, S/O.RAGHAVAN AGED 57 YEARS, 11/260, TAILOR STREET, PALAKKAD TALUK AND DISTRICT BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. VENUGOPALAN NAIR, S/O.PARAMESWARANPILLA, AGED 57 YEARS, MUTHUKUNNI, AYILOOR, MELARKKODE, ALATHUR, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.365 of 2009 -------------------------------------- Dated this the 21st day of May, 2009. ORDER Public prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make. 2. Respondent No.1 filed a complaint against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) alleging that the cheque (Ext.P1) dated 20.12.2005 issued by petitioner for discharge of the debt to the tune of Rs.55,000/- was dishonoured on presentation for insufficiency of funds and inspite of dishonour intimation and demand for payment of the amount, petitioner did not pay the amount. Learned magistrate found the petitioner guilty, convicted and sentenced him to undergo simple imprisonment for one year and to pay Rs.75,000/- as compensation. In appeal the conviction and direction for payment of compensation were confirmed but the substantive sentence was modified as simple imprisonment till rising of the court. That judgment is under challenge in this revision petition. Learned counsel for petitioner contends that the due execution of the cheque is not proved and that at any rate, presumption under Section 139 of the Act is rebutted. Crl.R.P.No.365/2009 2 3. It is not very much in dispute that Ext.P1, cheque was issued by the petitioner. Even as per his case, respondent No.1 had filed S.T.No.1206 of 2005 against him in the Judicial First Class Magistrate Court, Palakkad for offence punishable under Section 138 of the Act. That case was settled and Rs.25,000/- was paid at the time of settlement on 3.12.2005. According to the petitioner, for payment of the balance sum of Rs.55,000/- three months time was granted and as security for that Ext.P1 cheque was issued. 4. Dishonour of cheque for the abovesaid reason is proved by Ext.P2. Issue and service of notice are proved by Exts.P3 series and P4. 5. So far as Exts.D1 to D4 are concerned, that do not in any way affect the case of respondent No.1 since as per Exts.D1 to D4 petitioner had given Ext.P1, cheque for the sum of Rs.55,000/-. Respondent No.1 has given evidence as PW1. Respondent No.1 is also entitled to rely on the presumption under Section 139 of the Act which has not been rebutted by the petitioner. 6. One contention raised is that though the petitioner was given three months time to pay of the amount covered by Ext.P1, the cheque was presented for encashment within the said period and therefore, the complaint is not maintainable. This contention cannot stand since even as per the version of the petitioner and as per Exts.D1 to D4 the amount was payable 'within three Crl.R.P.No.365/2009 3 months' and not 'after three months'. At any rate, 'enforceability' of the debt referred to in Section 138 of the Act cannot be decided with reference to the agreement if any between the parties as held by the High Court of Delhi in Shyam Gopal Gupta v. Sanjeev Bhargava (2008(2) KLT 848). 'Enforceability' should pertain to the nature of the debt/liability. It is not shown that the amount covered by Ext.P1 is not legally recoverable. Therefore, the conviction of the petitioner does not require interference. 7. So far as sentence is concerned, considering the nature of the offence and the object of legislation there is little reason to interfere with the direction for payment of compensation which takes in the interest payable also. Appellate court was lenient in the matter of substantive sentence which was modified to simple imprisonment till rising of the court. As such no interference is required with reference to the sentence portion as well. 8. At this stage, learned counsel for petitioner requested that six months' time may be granted to pay the compensation. Considering the facts and circumstances of the case I am inclined to grant three months' time to pay the compensation awarded by the courts below. Crl.R.P.No.365/2009 4 Resultantly, this revision fails. It is dismissed. But it is made clear that it will be sufficient compliance with the direction regarding deposit of compensation if within the aforesaid time, 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 receipt of the amount. Petitioner shall surrender in the trial court on 26.8.2009 to receive the sentence. Crl.M.A.No.1081 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks