IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 Crl.Rev.Pet.No. 1913 of 2009() ------------------------------ CRA.158/2007 of ADDL. DISTRICT AND SESSIONS COURT, (ADHOC)-II, THODUPUZHA ST.132/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- VALSA, W/O RAMAKRISHNAN, AGED 38 YEARS, RESIDING AT VENATTUKUNNEL HOUSE, VENGALLOOR P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. V.G.SAJEEVAN, AGED 45 YEARS, RESIDING AT VALLIPADAVIL HOUSE, KARIMKUNNAM P.O., KARIMKUNNAM VILLAGE, THODUPUZHA TALUK. 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 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1913 of 2009 -------------------------------------- Dated this the 19th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned IV Additional District & Sessions Judge (Adhoc-II), Thodupuzha in Crl.Appeal No.158 of 2007 confirming conviction and sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. Respondent No.1 filed a private complaint against petitioner stating that she owed Rs.50,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 2.12.2005 which was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice on the petitioner are proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and stated that petitioner borrowed Rs.50,000/- from him on 10.8.2005 undertaking to repay the same within three months and issued the cheque. According to the petitioner she had no transaction with respondent No.1 and instead in connection with a transaction with one Joji, she had given signed blank cheque to said Joji one of which is Crl.R.P.No.1913/2009 2 Ext.P1. Petitioner did not adduce any evidence in support of her contention. 4. Regarding the cause of dishonour and issue and service of notice on the petitioner no contention is advanced before me. Challenge in this revision is regarding due execution of the cheque. Though petitioner contended that she had handed over signed blank cheques including Ext.P1 to one Joji, what is available is only a suggestion to that effect to respondent No.1 which the latter denied. It is not disputed, and is proved by respondent No.1 that Ext.P1 is drawn on the account maintained by the petitioner. Petitioner did not prove or probabilise how else the cheque happened to be in the custody of respondent No.1. It is also to be borne in mind that inspite of getting notice about dishonour and demanding payment of the amount, petitioner did not reply to that. Evidence let in by respondent No.1 along with attending circumstances has been considered by the courts below to hold that explanation offered by the petitioner regarding the cheque cannot be accepted. Petitioner has not been successful in discrediting the version of respondent No.1 regarding the transaction and execution of the cheque. She failed to rebut the presumption under Section 139 of the Act. Hence conviction requires no interference. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month. Petitioner was directed to pay Rs.55,000/- as compensation to respondent No.1 under Section 357(3) of the Code of Criminal Procedure and in default of payment to undergo imprisonment for two months. Crl.R.P.No.1913/2009 3 Appellate court did not interfere with the sentence. Learned counsel prayed that sentence may be modified. 6 . Having regard to the nature of offence and the object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient sentence in the ends of justice There is however no reason to interfere with the direction for payment of compensation to respondent No.1 or the default sentence provided. 7. Learned counsel requested that petitioner may be granted three months' time to deposit the compensation in the trial court. Counsel submits that petitioner is unable to raise the amount immediately. Considering the circumstances stated by the learned counsel and the amount involved, I am inclined to grant three months' time to the petitioner to deposit compensation in the trial court. In case of non-payment petitioner has to suffer default sentence as ordered by the courts below. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner by the courts below is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time to deposit in the trial court for payment to respondent No.1 Rs.55,000/- ( Rupees Fiftyfive thousand only) as compensation under Section 357(3) of the Code failing which he shall undergo simple imprisonment for two months as ordered by learned magistrate. iii. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 Crl.R.P.No.1913/2009 4 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period of three months. iv. Petitioner shall appear in the trial court on 22.9.2009 to receive the sentence. Crl.M.A.No.5875 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks