IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.Rev.Pet.No. 2046 of 2009() ------------------------------ CRA NO.248/2008 OF SESSIONS COURT, KOTTAYAM ST.841/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------- SHAJI, THENGUMPATHARA HOUSE, PANAKARICHIRA, VELOOR P.O., KOTTAYAM. BY ADV. SRI.P.V.BIJU PONTAYIL RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. K.C.MATHEW, PARAPOOTHARA HOUSE, VELOOR P.O., KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.06.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2046 of 2009 -------------------------------------- Dated this the 26th 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 Sessions Judge, Kottayam in Crl.Appeal No.248 of 2008 confirming conviction but modifying sentence of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 2. Case arose on a private complaint filed by respondent No.1. According to respondent No.1, petitioner owed Rs.53,000/- to him and for discharge of that liability issued Ext.P1, cheque dated 30.10.2004 which was dishonoured for insufficiency of funds on 10.11.2004 as proved by Exts.P2 and P3. On getting dishonour intimation, respondent No.1 issued notice to the petitioner on 26.11.2004 intimating dishonour and demanding payment of the amount. Issue of statutory notice by registered post and its service on the petitioner are proved by Exts.P4 to P6. 3. Respondent No.1 as PW1 gave evidence regarding the alleged transaction and execution of the cheque. According to the petitioner, he had no transaction with respondent No.1. Instead, respondent No.1 paid Rs.53,000/- to Crl.R.P.No.2046/2009 2 one Ponnamma Balachandran through petitioner's wife and the cheque was obtained from the wife of petitioner forcibly as security. It is also contended by petitioner that he had not filled up Ext.P1. Courts below were not inclined to accept that explanation of the petitioner and found him guilty. That finding is under challenge in this revision. 4. It is not disputed that it was in connection with a transaction involving Rs.53,000/- with respondent No.1 that the cheque in question was given to him though, according to the petitioner, he had not borrowed the amount and the amount was borrowed by Ponnamma Balachandran. His contention is that cheque was taken forcibly from his wife as security. That version of the petitioner does not appear to be true. If there was any such coercion or threat in obtaining the cheque, in the normal course petitioner would have filed complaint against respondent No.1 for such highhanded action. At least he would have informed his bank about that and instructed to stop payment as per that cheque. It is seen from the judgments of the courts below that petitioner had sent a reply to the notice served on him but, the contentions raised in the reply notice are not substantiated. Cross examination of respondent No.1 also did not yield any result. Petitioner has not proved or probabilised his case by adducing or bringing out any circumstances. Nothing is brought out to disbelieve the evidence of respondent No.1. It is in these circumstances that courts below placing reliance on the evidence of respondent No.1 and found the petitioner guilty. I do not find reason to interfere with the conviction of petitioner. Crl.R.P.No.2046/2009 3 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and payment of fine of Rs.55,000/- with default sentence for three months. It was directed that out of the fine if realised Rs.53,000/- will be given to respondent No.1 as compensation. Learned Additional Sessions Judge modified the substantive sentence as imprisonment till rising of the court. Imposition of fine was confirmed but, default sentence was modified as imprisonment for one month. 6. Learned counsel requested that fine may be converted as compensation payable to respondent No.1 directly. Learned counsel requested four months' time to deposit the compensation in the trial court. 7. Having regard to the nature of offence, the amount involved and the circumstances stated by learned counsel I am inclined to think that while retaining the substantive sentence awarded by learned Sessions Judge the sentence of fine could be converted as compensation payable to respondent No.1. Petitioner is granted four months' time to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. While maintaining the sentence of imprisonment till rising of the court awarded by learned Additional Sessions Judge, the sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1 as compensation Rs.53,000/- (Rupees Fiftythree thousand only) within four months from this day failing which he shall undergo simple Crl.R.P.No.2046/2009 4 imprisonment for three months. ii. 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 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 aforesaid time. iii. Petitioner shall appear in the trial court on 27.10.2009 to receive the sentence. Crl.M.A.No.6187 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks