IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 1665 of 2009() ----------------------------------------- CRA.758/2007 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM ST.305/2006 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- MRS.JOLLY ROY, W/O.MR.ROY KURIAN, AGED 30 ATHANICKAL HOUSE, HOSPITAL ROAD, OPPOSITE NEW BUS STAND, TRIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. MR.K.K.VIJAYAKUMAR MR.BIJU PONTHAYIL RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------- 1. M/S.COMMERCIAL HIRE PURCHASE INDIA LTD. N.62, GCDA COMPLEX, MARINE DRIVE, ERNAKULAM, COCHIN-31, REPRESENTED BY ITS SECRETARY. 2. THE STATE OF KERALA, REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.RAVINDRA BABU R1 BY ADV. MR.C.P.PEETHAMBARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1665 OF 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 ORDER This revision is in challenge of the judgment of learned Additional Sessions judge (Adhoc-II), Ernakulam confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but, modifying the substantive sentence awarded to the petitioner. 2. Case arose on a private complaint filed by respondent No.1 alleging that there was a hire purchase agreement between it and the petitioner on 3.6.2005 as per which Rs.2,72,000/- was advanced to the petitioner and as on 31.7.2005, Rs.38,000/- was due to respondent No.1. For partial discharge of that liability, petitioner issued Ext.P2, cheque dated 2.8.2005 for Rs.35,000/-. That cheque was dishonoured for insufficiency of funds which fact was intimated to the petitioner and he was called upon to make payment but, in spite of service of notice, he did not pay the amount. Dishonour of the cheque for the reason stated above is proved by Exts.P3, P4 and P7. Issue and service of notice are Crl.R.P.No.1665/09 2 proved by Exts.P5 and P6. Representative of respondent No.1 gave evidence as PW1. Contention raised by the petitioner is that no such amount is due to respondent No.1 and that the cheque was not issued as claimed by it. Courts below, accepting the evidence of PW1 and Exts.P1 to P7 found the petitioner guilty. It is contended that conviction is illegal. 3. Concurrent finding entered by the courts below that Ext.P2 cheque contained the signature of the petitioner is not challenged. Petitioner also is not disputing that fact. It is also not disputed that he had hire purchase transaction with respondent No.1. Execution of the cheque is proved by the evidence of PW1. Nothing is brought out to disbelieve his evidence. Petitioner did not reply to the notice. If actually no such amount is due and the petitioner had not issued the cheque, he would have replied to the notice served on him. In these circumstances, relying on the evidence courts below found that petitioner issued the cheque for discharging the legally enforceable liability and that the presumption under Section 139 of the Act is not rebutted. I find no reason to interfere with the concurrent findings entered by the courts Crl.R.P.No.1665/09 3 below. 4. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for two weeks and to pay compensation of Rs.45,000/-. In appeal the substantive sentence was confirmed but compensation payable to respondent No.1 was modified as Rs.35,000/-. A default sentence was also provided. Having regard to the nature of offence and the amount involved, I am satisfied that Simple Imprisonment till rising of the court and compensation as awarded by the appellate court with the default is sufficient. 5. Learned counsel for petitioner requested one month's time to deposit compensation in the trial court. Having regard to the amount involved and other circumstances stated, I am inclined to allow that request. Revision petition is allowed in part in the following lines. i) Substantive sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the courts. ii) Petitioner is granted one month's time to deposit compensation as modified by the appellate court, in the trial court. In case compensation is not deposited within that time, Crl.R.P.No.1665/09 4 he shall undergo imprisonment as directed by the appellate court. iii) Petitioner shall appear in the trial court on 6.7.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1665/09 5