IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 2232 of 2009() ------------------------------ CRA.696/2005 of SESSIONS COURT, TRIVANDRUM ST.3945/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- W.BABURAJ,S/O. WILSON, MADAVILA PUTHAN VEEDU, MALAYAM, MALAYAM P.O. THIRUVANANTHAPURAM. BY ADV. SRI.SANTHAN V.NAIR RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE ------------------------------------------- 1. B.ANIL KUMAR, KAVUVILA VEEDU, 9/823,SASTHAMANGALAM P.O.THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2232 of 2009 -------------------------------------- Dated this the 10th day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2.Judgment of learned Sessions Judge, Thiruvananthapuram in Crl.Appeal No.696 of 2005 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) is under challenge in this revision Respondent No.1 preferred a private complaint against the petitioner alleging that petitioner borrowed Rs.60,000/- from him and issued Ext.P1, cheque dated 19.7.2004 for repayment of the amount. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. On getting information about dishonour respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount as proved by Exts.P4 to P6. Challenge is to the finding regarding execution of the cheque. 3. Regarding borrowel and execution of the cheque as claimed by respondent No.1, he has given evidence as PW1. According to the petitioner, he had no transaction with respondent No.1. He did not admit the signature and handwriting in Ext.P1.. But courts below on the evidence found in favour of due Crl.R.P.2232/2009 2 execution of the cheque. Exts.P2 and P3 show that dishonour of the cheque was not for any dissimilarity of signature of drawer with the speciment signature of the account holder. It is not disputed that the cheque is drawn on the account maintained by the petitioner. Petitioner did not sent reply to the notice. In the circumstances courts below rightly found in favour of due execution of the cheque. Petitioner’s conviction therefore cannot be assailed. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed him to pay Rs.60,000/- to respondent No.1 as compensation. A default sentence of simple imprisonment for one month was also provided. There was a direction to pay cost of Rs.1,000/- and in default of payment to undergo simple imprisonment for one month. Appellate court set aside the direction for payment of cost but confirmed the sentence, direction for payment of compensation and the default sentence. Considering the nature of offence and amount involved, I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation. However in case of non-payment of compensation, petitioner has to undergo simple imprisonment for three months. 5. Learned counsel for petitioner requested that petitioner may be permitted to pay compensation to respondent No.1 directly and requested seven months’ time for such payment. He stated about the difficulties being experienced by the petitioner in arranging the amount within a short time. Considering the circumstances stated by learned counsel petitioner is granted Crl.R.P.2232/2009 3 time till 30.12.2009 to pay compensation. 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. While retaining the direction for payment of compensation petitioner is granted time till 30.12.2009 to deposit the same in the trial court. In case of default, petitioner has to undergo simple imprisonment for three months. 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 his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period of three months. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks