IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 CRL.REV.PET.NO. 1851 OF 2009() ------------------------------------------- CRA.146/2008 OF ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.812/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- SANKARA PILLAI,AGED 58 YEARS, S/O.PARAMESHWARAN PILLAI,KUTTIMALAYIL HOUSE, PULIYOOR P.O.,CHENGANNUR. BY ADV. SRI.K.JAYARAJ RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------- 1. V.N.P.KURUP,KANAKAPPURATHU HOUSE, PERISSERRY P.O.,CHENGANNUR. 2. KERALA STATE,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR DMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1851 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of June, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Sessions Judge, Mavelikkara in Crl. Appeal No.146 of 2008 confirming conviction 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.70,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 25.9.2006. That cheque when presented for encashment on 12.10.2006 was dishonoured for insufficiency of funds and difference in signature of petitioner with the specimen signature of the account holder. On getting information about dishonour respondent No.1 issued notice to the petitioner on 30.10.2006 intimating dishonour and demanding payment. Petitioner though received the notice did not pay the amount. Hence the complaint. 3. Respondent No.1 gave evidence as P.W.1 and proved CRL. R.P. No.1851 of 2009 -: 2 :- Exts.P1 to P6. Exhibit P1 is the cheque. Its dishonour for the reasons stated above is proved by Exts.P2 and P3. Issue and service of notice are proved by Exts.P4 to P6. When petitioner was questioned under Section 313 of the Code of Criminal Procedure about the circumstances appearing against him in the evidence he did not state anything specifically regarding the circumstances under which the cheque in question came to the custody of respondent No.1. Learned magistrate observed that though petitioner was given sufficient opportunity to adduce evidence he did not make use of that. Appellate court confirmed the finding of learned magistrate that petitioner issued the cheque for the discharge of a legally enforceable debt/liability. That finding is under challenge in this revision. Counsel for petitioner contended that execution of the cheque is not proved. 4. It is true that dishonour of the cheque was for the reason that there was no sufficient funds in the account of petitioner and since signature differed. But there is no serious dispute that petitioner had issued the cheque in favour of respondent No.1. Respondent No.1 has given evidence that petitioner issued the cheque in his favour. Concededly cheque is drawn on the account maintained by the petitioner. Petitioner has no specific case as to how else the cheque happened to be in the custody of respondent No.1. It is true that it was suggested to respondent No.1 when he was in the box that CRL. R.P. No.1851 of 2009 -: 3 :- respondent No.1 obtained the cheque as security ten years back in connection with a Kuri, which he denied. Petitioner was not successful in proving or probabilising how else the cheque happened to be in the custody of respondent No.1. There is no reason to disbelieve respondent No.1 as to the transaction and due execution of the cheque. Petitioner did not reply to the statutory notice. In the circumstances I do not find reason to interfere with the finding entered by the courts below as to execution of the cheque by the petitioner for the discharge of a legally enforceable debt/liability. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month. Petitioner was directed to pay compensation of Rs.70,000/- and in case of default to undergo simple imprisonment for three months. Appellate court did not interfere with the sentence, direction for payment of compensation or default sentence. Counsel for petitioner argued that sentence imposed is excessive. He prayed for six months’ time to deposit the compensation in the trial court. 6. Having regard to the nature of the offence and object of legislation, I am of the view that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time there is no reason to interfere with the direction for payment of compensation or default sentence. Considering the amount involved and circumstances CRL. R.P. No.1851 of 2009 -: 4 :- of the petitioner sated by learned counsel I am inclined to grant three months' time to the petitioner to deposit the compensation. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded to petitioner is modified as simple imprisonment till the rising of the court. (ii) Petitioner is granted three months' time from this day to deposit Rs.70,000/- (Rupees Seventy thousand only) in the trial court as compensation for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the 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 the compensation within the said period of three months. Petitioner shall appear in the trail court on 15.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv