IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 2736 of 2009 ------------------------------ CRA.734/2007 OF SESSIONS COURT, KOLLAM CC.451/2003 OF MUNSIFF MAGISTRATE COURT, PARAVUR .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- RADHAKRISHNAN,S/O. RAMANKUTTY, ATHULYA BHAVAN, POLACHIRA P.O., NEDUNGOLAM,KOLLAM. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE ------------------------------------------- 1. NIRMALA VIJAYAN, VINI NIVAS, KOTTAPPURAM, PARAVOOR P.O.,KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Shg/ THOMAS P JOSEPH, J. -------------------------------- Crl.R.P.No.2736 of 2009 ------------------------------- Dated this the 25th August,2009 ORDER Notice to respondent no.1 is dispensed with in view of the order I propose to pass in the revision which is not prejudicial to respondent no.1. 2. This revision is in challenge of Judgment of the learned Session Judge, Kollam in Crl.Appeal No.734 of 2007 confirming conviction but modifying 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.50,000/- (Rupees Fifty Thousand only) from her and for repayment of that amount issued Ext.P5, cheque. That cheque was dishonoured for insufficiency of funds as proved by Ext.P1. Service of statutory notice on petitioner is proved by Exts.P2 to P4. Respondent no.1 gave evidence as Pw1 and stated to her case. Petitioner claimed that he had borrowed Rs.10,000/- (Rupees Ten Thousand only) from respondent no.1 in the year, 2001 and given a signed blank cheque as security. That cheque is misused though Crl.R.P.No.2736 of 2009 2 he had repaid the amount to respondent no.1. Petitioner did not adduce any evidence or bring out circumstances to prove or probablise that version. Courts below did not accept that contention. It is contended by the learned counsel that the finding of the court below is not correct. 3. Petitioner does not dispute that Ext.P5 contain his signature and it is drawn on the account maintained by him. He is also not disputing that he had financial transaction with respondent no.1, and that it was in connection with that, Ext.P5, cheque was given to respondent no.1. Dispute is only regarding the amount and its repayment. Petitioner has not replied to the statutory notice served on him and there is no evidence or circumstances to show that the amount borrowed was only Rs.10,000/- (Rupees Ten Thousand only) or that the whole or part of the amount was repaid. In the circumstances courts below are justified in holding in favour of due execution of the cheque. I find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for 3 days. There is also a Crl.R.P.No.2736 of 2009 3 direction for payment of Rs.50,000/- (Rupees Fifty Thousand only) by way of compensation to respondent no.1 and in default to undergo simple imprisonment for 2 months. The appellate court did not interfere with the sentence. Having regard to the nature of offence and the amount involved I find no reason to interfere with the direction for payment of compensation or the default sentence, at the instance of petitioner, However the substantive sentence can be modified as simple imprisonment till raising of the court. 5. Learned counsel requested that petitioner may be granted 6 months' time to deposit compen-sation in the trial court. It is stated that due to financial difficulties petitioner is unable to raise the entire amount immediately. Having regard to the circumstances stated by learned counsel I am inclined to grant time till 25/1/2010 to deposit compensation. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence award to the petitioner is modified as simple imprisonment till rising of the court. Crl.R.P.No.2736 of 2009 4 2. Petitioner is granted time till 25/1/2010 to deposit compensation in the trial court as ordered by that court. 3. It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent no.1 through his counsel in the court below and respondent no.1 filed statement in that court through her counsel acknowledging receipt of compensation within the aforesaid time. 4. Petitioner shall appear in the trial court on 25/1/2010 to receive the sentence. Until then execution of warrant if any, against the petitioner will stand in abeyance. THOMAS P JOSEPH,JUDGE ssn