IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND JUNE 2009 / 2ND ASHADHA 1931 Crl.Rev.Pet.No. 1961 of 2009 ------------------------------ CRA.579/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.82/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------- OMANA AMMA,W/O.RAVEENDRAN NAIR (LATE), KAIPPANALIL THEKKETHIL, KUTTEMPEROOR MURI, MANNAR VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN RESPONDENT/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. RADHAKRISHNA PILLAI,ELAYANATHU HOUSE, ENNAKKADU VILLAGE,CHENGANNUR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1961 of 2009 --------------------------------------- Dated this 22nd day of June 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge-II, Mavelikkara in Crl. Appeal No.579/2007 confirming conviction and sentence of petitioner for the offence punishable under Sec.138 of the Negotiable Instruments Act (for short, “the Act”). 2. Respondent No.2 claimed that petitioner issued Ext.P1, cheque dated 26/11/05 for Rs.1,00,000/- for the discharge of the liability, cheque was dishonoured for insufficiency of funds and that in spite of statutory notice served on the petitioner she did not pay the amount. Respondent No.2 gave evidence as PW1. He stated that petitioner borrowed Rs.1,00,000/- from him and for repayment of that amount issued the cheque. Ext.P1 is that cheque. Its dishonour for the reason stated above is proved by Exts.P2 and P3. Issue and service of notice on the petitioner are proved by Exts.P4 to P6. Petitioner contended that she had no transaction with respondent No.2. According to her, she had availed a loan of Rs.15,000/- from one Thankamony Amma to whom she had issued a signed blank cheque as security. She also contended that in spite of her repaying the said amount, Thankamony Amma did not return the cheque. Courts below Crl.R.P.No.1961/09 2 were not inclined to accept that explanation of petitioner. It is contended that finding of the courts below regarding the due execution of the cheque is not legally correct. 3. It is not disputed that Ext.P1 contained signature of petitioner. It is also not disputed that the said cheque as was drawn on the account maintained by her. She has a case that she had handed over that cheque to Thankamony Amma as security for a loan of Rs.15,000/ taken from her. Respondent No.2 denied the suggestion to that effect. Petitioner could not prove or even probabalise that contention. What is available is only some suggestions made to respondent No.2 which he denied. Petitioner was not able to discredit the version of respondent No.2 regarding the transaction and execution of the cheque. Nothing is brought out to disbelieve the version of respondent No.2. It is pertinent to remember that petitioner, in spite of being served with statutory notice demanding payment of Rs.1,00,000/-, did not reply to it. If petitioner had no transaction with respondent No.2 and had not given the cheque to respondent No.2, petitioner would have replied to the notice. There is no proper explanation for not replying to the notice. Courts below considered the evidence of respondent No.2 in the circumstances stated above and found that the petitioner issued the cheque in the circumstances stated by respondent No.2. Crl.R.P.No.1961/09 3 There is no reason to interfere with that finding as it is not vitiated by any illegality, irregularity or impropriety. Conviction of the petitioner cannot be assailed. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.1,05,000/- (Rupees One Lakh Five Thousand Only) to respondent No.2. There was also a default sentence of imprisonment for one month. Appellate court did not interfere with the sentence or direction for payment of compensation. Learned counsel requested that the sentence may be modified. He also requested four months time to the petitioner to deposit compensation in the trail court. 5. Having regard to the nature of the offence which does not involve any moral turpitude and the amount involved, 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. Considering the circumstances stated by learned counsel regarding the financial difficulty of petitioner, I am inclined to grant four months' time to deposit the compensation in the trail court. In case of default in payment, petitioner has to undergo simple imprisonment for three months'. Crl.R.P.No.1961/09 4 6. 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 is granted four months' time from today to deposit Rs.105,000/- (Rupees One Lakh Five Thousand Only) as compensation in the trail court for payment to respondent No.2 under Sec.357(3) of the Code. In case of default, petitioner shall undergo simple imprisonment for three months'. (iii) It is made clear that it will be sufficient compliance of direction for payment of compensation if petitioner paid the compensation to respondent No.2 through her counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the aforesaid period of three months'. (iv) Petitioner shall appear in the trail court on 25/09/09 to receive sentence. THOMAS P JOSEPH, JUDGE Sbna/