IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Crl.Rev.Pet.No. 1969 of 2011() ------------------------------ CRA.34/2011 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA ST.214/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... PETITIONER/APPELLANT/ACCUSED: --------------------- T.T.JOHN, THAZHATHUTHUNDIYIL HOUSE, UPPUKANDOM P.O.,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. BENNY K.J, KALAVANAL HOUSE,KUZHITHOLU KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK.PIN-685 552. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031. R1 BY ADV. SRI.GEORGE MATHEWS SMT.CELINE JOSEPH PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P. No.1969 of 2011 --------------------------------------------- Dated this the 13th day of October, 2010 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short N.I.Act), concurrently by the two courts below. 2. The trial magistrate, on his conviction, has sentenced him to undergo simple imprisonment for two months and to pay compensation of Rs.3,50,000/- with 6% interest thereon from the date of complaint till realisation, with default term of simple imprisonment for two months. Affirming the conviction, the learned Sessions Judge modified the substantive term of simple imprisonment till the rising of the court, retaining the compensation awarded by the magistrate with default term of imprisonment thereof. Feeling aggrieved, the accused has filed this revision. 3. Notice given the 1st respondent has entered appearance. 4. I heard the counsel on both sides. Learned counsel for the revision petitioner/accused assailed the conviction concurrently rendered against the accused contending that no positive evidence was tendered by the complainant to prove the Crl.R.P. No.1969 of 2011 2 transaction and also execution of the cheque, both of which were disputed by the accused. The accused had contended that the cheque was given as a security to the father of the complainant towards the liability due from his sister-in-law. To substantiate that plea apart from producing documentary materials he has examined two witnesses as DW1 and DW2. Materials tendered by him were not properly appreciated by both the courts below and that has given rise to forming wrong conclusion resulting in miscarriage of justice, is the submission of the counsel. It is further submitted that the complainant examined as PW1 could not prove that the cheque involved had been issued in a transaction with him and towards discharge of a legally enforceable debt or liability from the accused. On the other hand the learned counsel for the complainant would submit that there is no merit in the grounds canvassed to challenge the conviction, and both the courts below, after meticulous consideration of the materials tendered, have come to the right conclusion that the accused is guilty of the offence under Section 138 of N.I. Act. 5. Perusing the judgments rendered by the learned magistrate and also the learned sessions judge, I find that the Crl.R.P. No.1969 of 2011 3 accused, who had set up a defense that the cheque involved was issued as a security towards the transaction with the father of the complainant, has not mounted the box to swear in support of his case. Statutory notice issued on dishonour of the cheque, which, admittedly, arose from his account, was not responded with any reply. He has contended that the cheque was issued as a security. There was no specific contention as to whether such instrument was handed over with the columns thereof duly filled up or not. At any rate, he had no dispute that the instrument so handed over by him contained his signature. So the plea canvassed by him that it was issued as a security towards a transaction with the father of the complainant, for its acceptance, required evidence at least showing that the version so presented by him is probable. What he has tendered in evidence is an agreement with another, in which, some reference is made as to his account number and the cheque number. A civil case was filed by the father of the complainant against his sister-in-law, was canvassed to substantiate his defence. Even his sister-in-law was not cited as a witness to show that she had any transaction with the father of the complainant and the cheque Crl.R.P. No.1969 of 2011 4 had been issued by the accused towards security in relation to her liability under such transaction. Both the courts were fully justified in the aforesaid circumstances that the defence canvassed by the accused, in the lines indicated above, at the stage of trial, without even sending a reply to the statutory notice, was totally bereft of any value. The evidence of the complainant, who was examined as PW1, was found credible and trust worthy by the learned magistrate to accept his case that the cheque had been issued by the accused towards discharge of a debt or liability to him. The learned sessions judge, after reappraisal of the evidence has affirmed the conclusion so formed by the learned magistrate. Within the narrow scope of revisional jurisdiction needless to point out, the finding so entered concurrently by the two inferior courts is not open for interference especially where no infirmity is pointed out over such conclusion. Suffice to state conviction entered against the accused is found to be just and reasonable and it does not warrant any interference. 6. At this stage, the learned counsel for the petitioner requested for modification of the sentence awarded at least to the extent of vacating of the interest awarded over the Crl.R.P. No.1969 of 2011 5 compensation amount fixed and also grant of some more time to pay the sum to avoid the default term of imprisonment. Interest awarded at 6% from the date of complaint till realisation, by the magistrate on the compensation amount, may result in further complications in execution of the sentence. Sentence should be precise and not requiring any exercise over the actual amount due as compensation. Once sentence is awarded it has to be executed as such. What is awarded is compensation and not a decree debt. So much so, the award of interest on compensation by the magistrate was not proper. Without taking note of the above aspects, the sessions judge in appeal also awarded interest on the compensation, which require to be set aside, and it is ordered accordingly. So far as the request made by the learned counsel for grant of time is concerned, it is seen that the cheque involved in the case is dated 5.12.2005. Considering the timelag after the commencement of the prosecution, prima facie, there is no merit in the request for further extension of time to pay the compensation. However, taking into consideration the submissions made by the counsel pointing out the extenuating circumstances in favour of the Crl.R.P. No.1969 of 2011 6 accused to seek such extension of time, I find, some more time as indicated hereunder can be granted to pay the compensation. 7. Affirming the conviction, sentence imposed against the accused is modified as imprisonment till the rising of the court and payment of compensation of Rs.3,50,000/- with default term of imprisonment for two months. Petitioner is directed to appear before the Magistrate Court on 03.01.2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above, to enable the accused to pay the amount awarded within the above period. In default of his appearance and non- payment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc //True Copy// PA to Judge