IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 2515 of 2004() ------------------------------ CRA NO.669/2002 OF ADDITIONAL SESSIONS JUDGE, N.PARAVUR S.T.NO.1817/1999 OF JUDICIAL FIRST CLASS MAGISTRATE, N. PARAVUR REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PRAKASAN, AGED 33, S/O.NALINAKSHAN, KARICHIRA VEEDU, KARUMALLOOR P.O., MANAKKAPPADY. BY ADV. SRI.K.S.MADHUSOODANAN RESPONDENT(S): COMPLAINANT/FORMAL PARTY --------------------------------------- 1. JOMON CHERIAN, MAMPILLY HOUSE, MARKET ROAD, NORTH PARUR. 2. STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTORPUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2515 of 2004 -------------------------------------- Dated this the 17th day of June, 2009. ORDER Learned counsel for petitioner submitted that petitioner is undergoing imprisonment in Central Prison, Viyyoor and requested early disposal of this revision. Learned counsel also submitted that this Court, without calling for the records could dispose of the revision based on the facts and evidence referred in the judgments under challenge. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, North Paravur in Crl.Appeal No.669 of 2002 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 borrowed Rs.35,000/- from him and issued cheque (Ext.P3) dated 24.11.1998. That cheque was dishonoured for insufficiency of funds as proved by Exts.P1, P2, P4 and P5 and evidence of PW1, manager of drawee bank. There is no challenge to that part of finding of the courts below. 4. Respondent No.1 issued notice to the petitioner on 10.12.1998 intimating dishonour and demanding payment. Issue and service of notice on petitioner are proved by Exts.P6 to P8. It is not disputed that petitioner sent reply to respondent No.1 which according to the latter contained false contentions. Since petitioner did not pay the amount as demanded in the Crl.R.P.no.2515/2004 2 statutory notice, respondent No.1 preferred the complaint. He gave evidence as PW2 and stated that petitioner borrowed Rs.35,000/- from him and issued the cheque. According to the petitioner, he had taken a loan of Rs.10,000/- from respondent No.1 and at that time given a signed blank cheque as security. He repaid the entire amount but respondent No.1 did not return the cheque. To prove that, petitioner examined DW1. He testified in that line. Courts below did not accept the evidence of DW1, acted upon the evidence of respondent No.1 and found the petitioner guilty. That finding is under challenge in this revision. 5. It is true that petitioner on being intimated about dishonour of cheque and demand for payment of the amount issued a reply and examined a witness on his side to substantiate his contention. Still, the question arose whether evidence of that witness can safely be accepted in preference to the evidence given by respondent No.1 in the facts and circumstances of the case. It is not disputed that Ext.P3 contained the signature of petitioner and that it was drawn on the account maintained by him. He had a financial transaction with respondent No.1 and himself handed over the cheque in connection with that a transaction. The dispute is whether the amount borrowed was Rs.35,000/- as claimed by respondent No.1 or it was only Rs.10,000/- as contended by petitioner and his witness. Learned magistrate observed that though DW1 stated so, no suggestion in that line was put to respondent No.1 when the latter was examined as PW2. Learned magistrate also observed that contention that petitioner borrowed only Rs.10,000/- and repaid the amount came only towards the fag end of the trial and in the absence of acceptable evidence, that contention cannot be accepted. Here is a case where the a cheque for Crl.R.P.no.2515/2004 3 Rs.35,000/- was produced by respondent No.1. That document created liability on the petitioner. Petitioner did not succeed in discrediting the evidence of respondent as to the transaction and execution of the cheque. Courts below have considered and accepted the evidence of respondent No.1. Sitting in revision, I do not find reason to interfere with the concurrent finding entered by the courts below as it does not suffer from any illegality, irregularity or impropriety. 6. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. Appellate court has confirmed the sentence. Now it is shown that petitioner has been in the jail, undergoing imprisonment since the last one week. I am inclined to think that the period of imprisonment already undergone by him is sufficient so far as substantive sentence is concerned. 7. At the same time respondent No.1 who suffered loss at the hands of petitioner cannot be forgotten. Provision is made in Section 357 (3) and (4) of the Code of Criminal Procedure (for short, “the Code”) to award compensation to reassure the victim that he is not forgotten by the criminal justice system. Taking into account the loss suffered by respondent No.1 I consider it appropriate that this Court should exercise its power under Section 357(4) of the Code to compensate the loss caused to respondent No.1 by awarding compensation in terms of money which on the facts and circumstances of this case is fixed at Rs.35,000/-. 7. Learned counsel for petitioner requested two months' time to deposit the compensation in the trial court. Counsel submits that since the Crl.R.P.no.2515/2004 4 petitioner is now in prison, he may not be able to raise the necessary funds forthwith. Considering the circumstances stated by the learned counsel I am inclined to allow that request. Resultantly, this revision is allowed in part in the following lines: i. Substantive sentence awarded by the courts below is modified to the period of detention already undergone by the petitioner. He shall be released from jail forthwith if not required to be detained otherwise. ii. Petitioner shall deposit in the trial court for payment to respondent No.1 Rs.35,000/- (Rupees Thirtyfive thousand only) as compensation under Section 357(3) of the Code within two months from this day failing which he shall undergo simple imprisonment for a period of fortyfive (45) days. Issue intimation to the Superintendent of Central Prison, Viyyur. Crl.M.A.No.11695 of 2004 will stand dismissed. THOMAS P.JOSEPH, Judge. cks