IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.Rev.Pet.No. 2057 of 2009 ------------------------------ CRA.135/2006 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD CC.662/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- OMANA, D/o.KUMARAN MANGOLI PARAMBU KAIRAMKUNNU, PUTHUKKODE P O ALATHUR, PALAKKAD BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT/1ST AND 2ND RESPONDENT/COMPLAINANT: ------------------------------------------- 1. V J GEORGE S/o. V R JOSEPH VELUTHA MANNUNGAL HOUSE KATTUKODE, VADAKKENCHERY PO ALATHUR, PALAKKAD 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/09, THE COURT ON 29/06/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2057 of 2009 --------------------------------------- Dated this 29th day of June 2009 ORDER Notice to respondent No.1 is dispensed 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 Court-1I), Palakkad confirming conviction and sentence of petitioner for offence punishable under Sec.138 of the Negotiable Instruments Act. Case arose on a private complaint preferred by respondent No.1. According to him petitioner borrowed Rs.9,000/- from him and for discharge of that debt issued Ext.P1, cheque dated 14-07-03. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2 and P3. On getting dishonour intimation, respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Notice was served on the petitioner but he did not pay the amount. Hence the complaint. 3. Ext.P1 is the cheque dated 14-07-03. Dishonour of the Crl.R.P.No.2057 of 2009 2 cheque for insufficiency of funds is proved by Ext.P2,P3 and P7 and evidence of PW2, manager of the bank. Issue and service of statutory notice are proved by Ext.P4 to P6. Finding of the court below regarding the above are not under challenge. 4. Respondent No.1 gave evidence as PW1 and stated about the transaction and execution of cheque. According to the petitioner, she had no transaction with respondent No.1. She had borrowed certain amount from one Chamunni and given six signed blank cheques including Ext.P1. That cheque has been misused. It is contended that due execution of cheque is not proved. 5. On the due execution of cheque, respondent No.1 gave evidence as PW1. It is admitted that Ext.P1 contained signature of the petitioner and that it is drawn on the account maintained by her. Though petitioner claimed that she gave Ext.P1 along with other cheques to Chamunni, no evidence has come in that line. There are also no circumstances brought out to probablise that version of the petitioner. What is available is only the suggestions made in that regard to respondent No.1 which he denied. In spite of being served with notice intimating dishonour and demanding payment of the amount petitioner did not reply to that. Nothing is brought out in the Crl.R.P.No.2057 of 2009 3 evidence of respondent No.1 to disbelieve his version regarding the transaction and execution of cheque. On going through the judgments under challenge, I do not find reason to interfere with the finding of the courts below that petitioner issued the cheque for discharge of legally enforceable debt/liability. Conviction therefore is unassailable. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment for two months and to pay compensation of Rs.9,000/- (Rupees Nine Thousand Only) to respondent No.1. In case of failure she was directed to undergo simple imprisonment for one month. Appellate court did not interfere with the sentence. Learned counsel submitted that sentence imposed is excessive. 7. Having regard to the nature of the offence and object of legislation I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation and the sentence provided in case of noncompliance. Learned counsel requested that three months' time may be granted to deposit the compensation. Having regard to the amount involved and circumstances stated by learned counsel I am inclined to grant two months' time to deposit compensation in the trial court. Crl.R.P.No.2057 of 2009 4 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 the court. (ii) Petitioner shall deposit Rs.9,000/- (Rupees Nine Thousand Only) by way of compensation payable to respondent No.1 in the trial court within two months' form this day failing which she shall undergo simple imprisonment for one month. (iii) It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. (iv) Petitioner shall appear in the trial court on 07-09-09 to receive sentence. THOMAS P JOSEPH, JUDGE Sbna/