IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.Rev.Pet.No. 2080 of 2009() ------------------------------ CRA.365/2006 of II ADDL. SESSIONS COURT, PALAKKAD CC.50/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- JALEEL.H, S/O HANEEFA, PONTHANCHETHI HOUSE, KAYARAMKODE, MUNDUR P.O., PALAKKAD. BY ADV. SRI.K.R.VINOD RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------- 1. MANNARKKAD BLOCK VANITHA CO-OPERATIVE SOCIETY LTD.NO.879, MANNARKAD REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2080 of 2009 -------------------------------------- Dated this the 30th 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 it. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned II Additional Sessions Judge, Palakkad in Crl.Appeal No.365 of 2006 confirming conviction but modifying sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. Respondent No.1, a co-operative society filed a private complaint against the petitioner alleging that the cheque issued by the petitioner for the discharge of the liability was dishonoured for insufficiency of funds and that inspite of statutory notice, petitioner did not pay the amount. Ext.P1 is the cheque dated 1.10.2003 for Rs.45,000/-. Dishonour of the cheque for reason stated above is proved by Ext.P2. Ext.P3 is office copy of notice issued to the petitioner. It is seen from paragraph eight (8) of the judgment of the trial court that postal receipt for sending the notice by registered post and acknowledgment card by the petitioner are produced along with Ext.P3 which revealed that notice was served on petitioner. Challenge in this revision is as to the finding of the courts below regarding execution of the cheque. Crl.R.P.No.2080/2009 2 4. PW1 is secretary of respondent No.1. She proved Exts.P7 and P8, copy of the minutes of the meeting of its director board resolving to prosecute the petitioner. She stated that petitioner subscribed to the kuri conducted by respondent No.1, prized it , received Rupees one lakh and executed Ext.P6, agreement undertaking to pay the future instalments. On petitioner defaulting payment of the amount petitioner issued the cheque for payment of the defaulted instalments amounting to Rs.45,000/-. Petitioner, it is seen has no definite case as to how else the cheque happened to be in the custody of respondent No.1. Petitioner summoned and proved Ext.D1, pass book issued to her from respondent No.1. Ext.D2 is the ledger extract of the account of respondent No.1 produced on the request of petitioner. Ext.D1 was produced to show that after 20.10.2002 petitionr made three payments. It however, turned out that date of alleged payments were not stated in Ext.D1. However, Ext.D2 showed that upto 30.9.2003 Rs.65,000/- was paid. According to PW1, Ext.P1 was issued for the balance sum of Rs.45,000/- That was found in favour by the courts below. 5. So far as execution of the cheque is concerned, petitioner also is not disputing that it contained his signature and is drawn on the account maintained by him. He does not dispute that he had subscribed to the kuri conducted by respondent No.1, prized the same and received the amount and executed Ext.P1, cheque. Ext.D2 shows that payment made to respondent No.1 is only Rs.65,000/-. According to PW1, for the balance amount petitioner has issued cheque dated 1.10.2003. Petitioner did not reply to the notice served on Crl.R.P.No.2080/2009 3 him. Courts below in these circumstances are justified in holding that petitioner issued the cheque in question for the discharge of a legally enforceable debt/liability and that he failed to rebut the presumption under Section 139 of the Act. On going through the judgments under challenge and hearing the learned counsel I find little reason to interfere with that finding in revision. Hence conviction of the petitioner is legal and proper and required no interference. 6. What remained is whether sentence imposed is excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed him to pay compensation of Rs.45,000/- with default sentence of simple imprisonment of sixty days. Appellate court while confirming conviction and the direction for payment of compensation modified the substantive sentence as simple imprisonment for one month and default sentence for non-payment of compensation as simple imprisonment for one month. 7. Learned counsel requested that the substantive sentence awarded by the appellate court may be modified. He also requested that petitioner may be granted six months' time to deposit the compensation in the trial court. Counsel states that petitioner is undergoing treatment for neurological problems and that he finds it difficult to raise the amount immediately. Considering the nature of offence and object of legislation, substantive sentence is modified as simple imprisonment till rising of the court. In the circumstances stated by the learned counsel I am inclined to grant five (5) Crl.R.P.No.2080/2009 4 months' time to the petitioner to deposit the compensation in the trial court. In case of non-payment of compensation, petitioner has to undergo simple imprisonment for two months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence is modified as simple imprisonment till rising of the court. ii. Petitioner is granted five (5) months' time from today to deposit the sum of Rs.45,000/- (Rupees fortyfive thousand only) by way of compensation payable to respondent No.1, in the trial court. In case of failure, petitioner shall undergo simple imprisonment for two months. iii. 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 its counsel acknowledging receipt of compensation within the said period of five months. iv. Petitioner shall appear in the trial court on 22.12.2009 to receive the sentence. Until then warrant if any issued against the petitioner will stand in abeyance. Crl.M.A.No.6308 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks