IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.Rev.Pet.No. 2363 of 2009() ------------------------------ CRA.561/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.966/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- BABU, AGED 45 YEARS, S/O.BALAKRISHNAN, KOTTARATH HOUSE, MATHILMOOLAM DESOM, PAPPINIVATTOM VILLAGE, THRISSUR TALUK. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT/COMPLAINANT: --------------------------- 1. KANNAN, S/O.RAMAKRISHNAN, KALATHIPARAMBIL, VALLIVATTOM VILLAGE, MUKUNDAPURAM TALUK. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. Public Prosecutor : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON 24/07/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2363 of 2008 --------------------------------------- Dated this 24th 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 which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track-2), Trissur in criminal appeal No.561 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.46000/- from him on 25-05-2005 and issued Ext.P1, cheque dated 05-06-2005. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P6. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, respondent No.1 was working as commission agent of a kuri company by name 'Vinayaka Chit Funds' and in connection with the kuri transaction petitioner had entrusted signed blank cheques with the kuri company. That has been stealthily obtained by respondent No.1 and misused. Respondent No.1 in his evidence as PW1 admitted that he worked as commission agent of the kuri company but denied that he has any role in petitioner joining the Crl.R.P.No.2363 of 2009 2 kuri conducted by that company. Learned Additional Sessions Judge observed that there is no material on record to show that respondent No.1 had any role in petitioner joining the kuri conducted by the company. There was no occasion for respondent No.1 to take the cheque in question. Learned Additional Sessions Judge considered the evidence and came to that conclusion that the explanation of petitioner cannot be accepted. Petitioner has not also replied to the statutory notice served on him. On going through the judgments under challenge and hearing counsel I do not find reason to think that respondent No.1 got the cheque in question in the circumstance pleaded by the petitioner. His conviction does not require interference. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. Petitioner was directed to pay compensation of Rs.50000/- to respondent No.1. Default sentence of imprisonment for two months was also provided. Learned Additional Sessions Judge modified the substantive sentence as simple imprisonment till rising of the court. Direction for payment of compensation was retained but default sentence was fixed as imprisonment for six months. Learned counsel contended that petitioner is undergoing imprisonment. Learned counsel requested that petitioner may be granted six months' time to deposit compensation since according to the learned counsel, petitioner is not Crl.R.P.No.2363 of 2009 3 able to raise the entire amount immediately. Considering the circumstances stated by learned counsel, I am inclined to grant petitioner time till 30-12-2009 to deposit compensation. So far as substantive sentence is concerned, petitioner has already undergone that and that is sufficient. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is confined to the period of imprisonment already undergone by him. 2. Petitioner is granted time till 30-12-2009 to deposit compensation in the trial court as ordered by appellate court. In case of failure petitioner has to undergo imprisonment as ordered by the appellate court. 3. It is made clear that it will be sufficient compliance of 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 the trial court through his counsel acknowledging receipt of compensation within the period aforesaid. It is directed that petitioner shall released forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Central Prison, Viyyur. In case petitioner does not comply with direction for payment of Crl.R.P.No.2363 of 2009 4 compensation within the time aforesaid he shall appear in the trial court on 31-12-2009 to receive the default sentence. If any portion of the default sentence as ordered by the appellate court has already been undergone by petitioner, that shall be set off in the default sentence which petitioner may have to suffer in case of non payment/deposit of compensation within the time aforesaid. THOMAS P JOSEPH, JUDGE Sbna/