IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 2464 of 2009 ------------------------------ CRA.759/2007 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II (ADHOC), THRISSUR IN CC.866/2005 OF JUDL.MAGISTRATE OF FIRST CLASS, CHALAKKUDY. .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- SHAJI, AGED 39 YEARS, S/O.NARAYANAN, THOTTATHIL HOUSE, NALUKETTU. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------------------------------- 1. JACOB, S/O.CHAKKUNNI, ELINJIPILLY HOUSE, MELADOOR P.O., VADAMA. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- THOMAS.P.JOSEPH, J - - - - - - - - - - - - - - - - - - - - - Crl. R.P.No.2464 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2009 O R D E R This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track No.II), Trichur in Crl.Appeal No.759 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act (for short, 'the Act'). Notice to respondent No.1 is dispensed with in view of the order I propose to pass in this revision which is not prejudicial to respondent No.1. 2. According to respondent No.1, petitioner owed Rs.70,000/- and agreed to repay the same within three months. For repayment of that amount petitioner issued Ext.P1, cheque dated 14.3.2005. That cheque was returned on presentation as account was closed. This is proved by Crl. R.P.No.2464 of 2009 2 Exts.P2 and P3. Service of notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and stated to his case. Petitioner when questioned under section 313 of the Code of Criminal Procedure (for short, 'the Code') claimed that he had no acquaintance or transaction with respondent No.1. But when respondent No.1 was in the box, it was suggested to him that the cheque was given to respondent No.1 as security in a chitty transaction and that was misused by respondent No.1. Petitioner did not adduce any evidence in support of that contention. Courts below found in favour of due execution of the cheque. It is contended by learned counsel that due execution of the cheque is not proved. 3. Going by the stand of petitioner when questioned under section 313 of the Code he is not even acquainted to respondent No.1, but in cross examination suggestion put to him was that petitioner issued the cheque as security in a chitty transaction. Courts below found that there is no Crl. R.P.No.2464 of 2009 3 evidence or circumstances to prove or probabilise that the cheque happened to be in the custody of respondent No.1 in the circumstances claimed by the petitioner. It is admitted that Ext.P1 contained signature of petitioner and that it was drawn on his account. Petitioner did not reply to the statutory notice served on him. There was nothing to disbelieve the evidence of respondent No.1. In these circumstances I find no reason to interfere with the finding of the courts below regarding due execution of the cheque. Petitioner failed to rebut the presumption under section 139 of the Act. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for seven months. There was also a direction for payment of compensation of Rs.70,000/- with a default sentence of imprisonment for 3 months. Appellate court modified the substantive sentence as simple imprisonment for one day and directed payment of compensation of Rs.70,000/-. Default sentence of Crl. R.P.No.2464 of 2009 4 imprisonment for three months was also provided. Learned counsel requested that petitioner may be granted six months' time to deposit the compensation. 5. Having regard to the nature of offence I am satisfied that simple imprisonment till raising of the court is sufficient. There is no reason to interfere, at the instance of petitioner with the direction for payment of compensation or the default sentence. Considering the difficulties of petitioner stated by learned counsel, petitioner is granted time till 30.12.2009 to deposit compensation. Resultantly, this revision 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 30.12.2009 to deposit compensation as ordered by learned Additional Sessions Judge. Crl. R.P.No.2464 of 2009 5 iii) It is made clear that it will be sufficient compliance of 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 through his counsel in that court acknowledging receipt of compensation within the aforesaid period. iv) Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then, execution of warrant if any against the petitioner will stands in abeyance. THOMAS.P.JOSEPH, JUDGE. app/-