IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.Rev.Pet.No. 2534 of 2009() ------------------------------ CRA.660/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.383/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- RAJAMMA JAMES, AGED 46 YEARS, W/O.JAMES, ATTUPURATHU VEEDU, BORDER OF PAYIPPADU POST, VEEYAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DIST. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT/.STATE --------------------------------------------- 1. KRISHNANKUTTY, AGED 41 YEARS S/O.KOCHUKUTTAN, THUNDUTHARAYIL BORDER OF PAYIPPADU POST, KARICHAL MURI, VEEYAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DIST. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2534 of 2009 -------------------------------------- Dated this the 6th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is aggrieved by the concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Harippad in S.T.No.383 of 2006 on the complaint preferred by respondent No.1 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.50,000/- from him on 23.1.2006 and issued Ext.P1, cheque dated 23.1.2006. That cheque was dishonoured for insufficiency of funds as proved by Exts. P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to his case. Petitioner claimed that she is a fish vendor by occupation and requested for a loan of Rs.10,000/- she was given only Rs.8,500/- and the rest was appropriated in interest. At the time of transaction signed blank cheque was given to respondent No.1. She has been repaying the amount borrowed at the rate of Rs.100/- per day and accordingly paid for fiftyseven days. She could not Crl.R.P.No.2534/2009 2 pay the balance amount. Matter was settled between her and respondent No.1 for Rs.7,700/-. That was entered in a book given by respondent No.1. Petitioner gave evidence as DW1 and proved Ext.D1. Respondent No.1 denied that Ext.D1 is issued by him or contained his signature or handwriting. Courts below found that execution of Ext.D1 is not proved, held in favour of due execution of the cheque and found petitioner guilty. That finding is under challenge. 3. It is seen from the judgments under challenge that Ext.D1 was sent to the expert for opinion but the expert could not give any definite opinion for want of more documents containing signature of respondent No.1. The matter was not further pursued by the petitioner. As it now stands, the report of expert does not in any way favour the petitioner. 4. So far as Ext.P1 is concerned, it is not disputed that it contained the signature of petitioner and is drawn on the account maintained by her. She also does not dispute that she had financial transaction with respondent No.1 and in connection with that, she gave the cheque to respondent No.1. There is no evidence to show that petitioner borrowed only Rs.10,000/- and that any amount was repaid to respondent No.1. Petitioner did not reply to the notice served on her. In these circumstances there is no reason to interfere with the concurrent finding entered by the courts below as to the due execution of the cheque. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month and directed payment of compensation of Crl.R.P.No.2534/2009 3 Rs.50,000/- to respondent No.1. A default sentence of imprisonment for two months was provided. Appellate court did not interfere with the sentence. It is contended that sentence imposed is excessive. 6. Considering the nature of offence and object of legislation 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 at the instance of petitioner. Since substantive sentence is modified, petitioner has to undergo simple imprisonment for three months in case of non-payment of compensation. 7. Learned counsel requested that petitioner may be granted six months’ time to deposit compensation. It is also requested that petitioner may be permitted to pay compensation directly to respondent No.1. Learned counsel stated that on account of financial difficulties petitioner is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 5.1.2010 to deposit compensation. Resultantly, this revision petition 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 time till 5.1.2010 to deposit compensation as ordered by the learned magistrate. In case of failure petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the direction Crl.R.P.No.2534/2009 4 for deposit of compensation if petitioner paid compensation to respondent No.1 through her 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 above said period. Petitioner shall appear in the trial court on 7.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks