IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 2456 of 2009() ------------------------------ CRA.212/2000 of V ADDL.SESSIONS COURT, ERNAKULAM CC.1161/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- M.K.SANJEEV,AGED 47,S/O.KESAVAN, MULACKAL VEEDU,MUTTATHADI P.O,AMBALLUR, TRICHUR DISTRICT. BY ADV. SRI.V.JOHN SEBASTIAN RALPH SMT.PREETHY KARUNAKARAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. K.M.ANTONY,VADAKKEPUTHUKKATTU, EZHUPUNNA P.O,CHERTHALA,ALLEPPEY DISTRICT. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2456 of 2009 -------------------------------------- Dated this the 31st day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision 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-V, Ernakulam in Cr.Appeal No.212 of 2000 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner promised to procure a job for him abroad and received Rs.25,000/- towards expenses. Petitioner could not procure job for respondent No.1. Petitioner issued Ext.P1, cheque dated 28.3.1996 for the said amount. Respondent No.1 presented the cheque for encashment but it was returned for insufficiency of funds. Cause of dishonour is proved by Exts.P2, P3 and C1. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 in support of his case. Petitioner contended that the cheque was obtained under coercion by respondent No.1 and others and is not supported by consideration. Petitioner did not adduce any evidence or bring out circumstances to prove or probabilise his contention. It is admitted that Ext.P1, cheque contained the signature of petitioner and is drawn Crl.R.P.No.2456/2009 2 on his account. When a negotiable instrument creating liability on him is produced by respondent No.1 from his possession, petitioner has the responsibility to explain how else the cheque happened to be in the custody of respondent No.1. Petitioner has not also replied to the notice served on him. In the circumstances there is little reason to interfere with the conviction of petitioner. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and payment of fine of Rs.5,000/- with a default sentence of imprisonment for two months. Appellate court did not interfere with the sentence. It is contended that sentence imposed is excessive. 4. This is a case where as found by the courts below and which I found there is no reason to interfere, that petitioner received Rs.25,000/- from respondent No.1 on 28.3.1996. Even after thirteen years petitioner has not paid the amount to respondent No.1. The latter is put to loss. It has been consistently held by this Court that normally a conviction for offence under Section 138 of the Act should be followed by a direction for payment of compensation. There is no reason why respondent No.1 should not be given compensation for the loss caused to him. Hence petitioner has to pay compensation to respondent No.1 which considering the amount involved and the lapse of time is fixed as Rs.30,000/-. In default of payment, petitioner has to undergo simple imprisonment for three months. Since compensation has Crl.R.P.No.2456/2009 3 been awarded, sentence of fine has to be set aside. Having regard to the nature of offence I am satisfied that substantive sentence can be modified as simple imprisonment till rising of the court. 5. Learned counsel for petitioner submitted that petitioner may be granted six months’ time to deposit compensation in the trial court since business of the petitioner has collapsed and he is unable to raise the amount immediately. Having regard to the difficulties of the petitioner expressed by learned counsel I am inclined to grant time to the petitioner 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. Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1, Rs.30,000/- (Rupees thirty thousand only) as compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner shall undergo simple imprisonment for three months. iii. It is made clear that it shall be sufficient compliance with 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 in that court through his counsel acknowledging receipt of Crl.R.P.No.2456/2009 4 compensation within the aforesaid time. 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 stand in abeyance. THOMAS P.JOSEPH, Judge. cks