IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2117 of 2009() ------------------------------ CRA.68/2006 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), KASARAGODE CC.1035/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.MOHANAN, AGED 36 YEARS, S/O. BHASKARAN, RESIDING AT NALCHERI VALAPPU, KANHANGAD VILLAGE, P.O.KANHANGAD SOUTH, KASARAGOD DIST. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. K.RAMAKRISHNAN, S/O. KUNHAMBU NAIR R/AT PANANKAVU,KANHANGAD VILLAGE, P.O.KANHANGAD SOUTH, KASARAGOD DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2117 of 2009 -------------------------------------- Dated this the 3rd day of July, 2009. ORDER Notice to respondent No. 1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is aggrieved by the judgment of learned Additional Session Judge (Adhoc-III), Kasaragod in Crl.Appeal No.68 of 2006 confirming conviction and sentence imposed on petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 filed a complaint against the petitioner. He alleged that petitioner borrowed Rs.25,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 26.5.2003. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation respondent No.1 issued notice to the petitioner on 10.6.2003 intimating dishonour and demanding payment of the amount. Ext.P3 is office copy of the notice. Acknowledgment card did not reach respondent No.1. He therefore, obtained Ext.P4, certificate from the Superintendent of Postal Department. Ext.P4 states that the registered notice was delivered to the petitioner on 17.6.2003. So far as cause of dishonour and service of notice are concerned, there is no contention raised Crl.R.P.No.2117/2009 2 before me nor do I find reason to interfere with the concurrent findings based on Exts.P2 to P4. 3. What remained is only the correctness of the finding of courts below that petitioner issued the cheque for discharge of a legally enforceable debt/liability. Respondent No.1 gave evidence as PW1 and stated about the transaction leading to the execution of the cheque. Petitioner did not have any specific defence when questioned under Section 313 of the Code of Criminal Procedure. But it was suggested to respondent No.1 when the latter was in the box that he was conducting a chitty along with one Bhaskaran to whom petitioner had given a signed blank cheque as security. Respondent No.1 denied that suggestion. 4. Apart from the suggestions made by the petitioner in the line stated above which respondent No.1 denied, there is no evidence to show that the cheque came to the hands of respondent No.1 in the manner suggested by the petitioner. Petitioner did not make any attempt to prove the circumstances under which according to him the cheque happened to be in the hands of respondent No.1. He was also not able to discredit the evidence of respondent No.1 regarding the transaction and execution of the cheque. Inspite of being served with notice, petitioner did not reply to it. It is in the above circumstances that courts below found in favour of due execution of the cheque. That finding is based on a proper appreciation of evidence. I find little reason Crl.R.P.No.2117/2009 3 to interfere. 5. Petitioner was sentenced to undergo simple imprisonment for three months. He was directed to pay compensation of Rs.25,000/- to respondent No.1 and in default of payment to undergo simple imprisonment for two months. Appellate court confirmed the sentence. It is contended that sentence awarded is excessive. Learned counsel pleaded for leniency in the matter of sentence and requested four months’ time to pay the compensation. 6. In the nature of the offence involved and considering the object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation. Considering the difficulties expressed by the petitioner to raise the amount he is granted three months’ time from today 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 court. ii. Petitioner is granted three month’s time to deposit in the trial court compensation ordered by learned magistrate for payment to respondent No.1. In case of default petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the Crl.R.P.No.2117/2009 4 direction for deposit of compensation if 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 acknowledging receipt of compensation within the said period of three months. Petitioner shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks