IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.Rev.Pet.No. 2029 of 2009() ------------------------------ CRA.32/2003 of ADDL.SESSIONS COURT, THODUPUZHA CC.21/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS-I , THODUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------------------------------------------- JOMON JACOB PICHAPPILLIL HOUSE, KADAVOOR VILLAGE, MUVATTUPUZHA. BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S)/RESPONDENTS/COMPLAINANT -------------------------- 1. THE STATE OF KERALA- REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SUNNY S/O AUGUSTINE, POOVANTHURUTHIL HOUSE, PALLICKAMURI KARA, KARIMANNOOR VILLAGE. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2029 of 2009 -------------------------------------- Dated this the 24th day of June, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Thodupuzha in Cr.Appeal No.32 of 2008 confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”), sentence and direction for payment of compensation. Case arose on a private complaint preferred by respondent No.2. Case is that petitioner borrowed Rs.50,000/- from him on 30.8.1999 agreeing to repay the same within one month and on his demanding repayment on 30.9.1999, petitioner issued Ext.P1, cheque for repayment of said amount. That cheque was dishonoured for insufficiency of funds. On getting information about dishonour respondent No.2 issued notice to petitioner on 3.12.1999. Notice was returned with the endorsement ‘unclaimed’. Thereon respondent No.2 preferred complaint. Ext.P1 is the cheque in dispute. Its dishonour for the above said reason and intimation to respondent No.2 is proved by Exts.P2 and P3. Ext.P4 is office copy of notice issued to the petitioner intimating dishonour and demanding payment of the amount. Ext.P5 is the notice returned Crl.R.P.No.2029/2009 2 unclaimed. Respondent No.2 gave evidence as PW1 and testified to his case. Petitioner gave evidence as DW1 and stated that he borrowed Rs.15,000/- from respondent No.2 on 3.1.1998 and gave three signed blank cheques as security. Making use of one of those cheques one Johnson preferred complaint against petitioner as C.C.No.168 of 1999 (Ext.D1 is the certified copy of that complaint). Later, there was a settlement between petitioner and respondent No.2 at Kothamangalam in the presence of one Mathai Mathew and as per settlement the said Mathai Mathew paid Rs.32,000/- to respondent No.2. When petitioner demanded the cheque to be returned, respondent No.2 offered to hand over the cheque to him at Thodupuzha. But that was not done. He contested C.C.No.168 of 1999 and got acquittal. Ext.D2 is the copy of judgment. Petitioner therefore contended that no amount is due to respondent No.2. 3. It is true that petitioner produced Exts.D1 and D2 which concerned a case instituted against him by one Johnson. It is also true that petitioner got acquittal in that case. But, petitioner was not able to prove by reliable evidence the connectiing link between the case filed by Johnson and present case. Petitioner did not examine Mathai Mathew who is said to have mediated the dispute and paid Rs.32,000/- in full and final settlement. Instead what is available is only the interested version of petitioner as DW1. Mere fact that petitioner has given evidence on oath by itself is not sufficient to discard the Crl.R.P.No.2029/2009 3 evidence of respondent No.2. Respondent No.2 has produced a negotiable instrument which created liability on petitioner. Atleast when petitioner got summons in C.C.No.168 of 1999,he would have, if his version was true, claimed return of the cheque from respondent No.2 by way of notice. That also was not done. On the other hand Ext.P5 shows that notice to him on behalf of respondent No.2 was returned unclaimed. That means petitioner was aware of the claim being made by respondent No.2. Nothing is brought out to disbelive the evidence of respondent No.2. Courts below have considered these circumstances and concluded in favour of the case pleaded by respondent No.2. That finding being on an appreciation of evidence, there is little reason to interfere in revision. Hence conviction of petitioner needs no interference. 4. While directing petitioner to pay Rs.50,000/- as compensation, learned magistrate sentenced him to undergo simple imprisonment for six months but no default sentence was provided for non-payment of compensation. It is within the power of court to impose default sentence in case compensation awarded is not paid. Learned counsel submitted that sentence imposed is excessive. Counsel requested that one month’s time may be given to the petitioner to deposit compensation in the trial court. 5. Having regard to the nature of offence and object of legislation I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with direction for Crl.R.P.No.2029/2009 4 payment of compensation. Petitioner can be granted one month’s time to deposit compensation. Petitioner however has to undergo simple imprisonment for three months in case he defaulted payment of compensation. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner by the learned magistrate is modified as simple imprisonment till rising of court. ii. Petitioner is granted one month’s time to deposit in the trial court Rs.50,000/- (Rupees fifty thousand only) for payment to respondent No.2 as compensation. In case of default, petitioner shall undergo simple imprisonment for three months iii. It is made clear that it will be sufficient compliance of direction for payment of compensation if petitioner paid the amount of compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of one month. iv. Petitioner shall appear in the trial court on 27.7.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 27.7.2009. Crl.R.P.No.2029/2009 5 Crl.M.A.No.6092 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks