IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.Rev.Pet.No. 2776 of 2009() ------------------------------ CRA.18/2008 of SESSIONS COURT, KASARAGOD CC.60/2007 of JUDICIAL FIRST CLASS MAGISTRATE II, KASARAGOD .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- HABEEB, S/O.MUKKRI IBRAHIM, AGED ABOUT 22 YEARS, DANISH BAKES, BENDOOR WELL CIRCLE, KANKANADI, MANGALORE-1. BY ADV. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH RESPONDENTS/RESPONDENTS/COMPLAINANT: -------------------------------------- 1. SAYED THAHA,S/O.SAYEED HADI THANGAL, AGED 42 YEARS, K.J.M.ROAD, UDAYAWAR VILLAGE & POST, KASARAGOD. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2776 of 2009 --------------------------------------- Dated this 26th day of August 2009 ORDER Respondent No.1 preferred a complaint in the court of learned Judicial Magistrate of First Class-2 (Additional Munsif), Kasaragod for offence punishable under section 138 of the Negotiable Instruments Act. His case is that petitioner owed Rs.Four Lakhs from him and for discharge of that liability issued Ext.P1, cheque dated 27-02-2006. That cheque was dishonoured for insufficiency of funds. Statutory notice was sent in his residential and official address. Notice issued in residential address was returned unclaimed. Notice issued in the office address was served. Petitioner did not make the payment. Hence the complaint. Learned magistrate took the complaint on file as C.C.No.60 of 2007. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P5. Ext.P1 is the aforesaid cheque. Ext.P2 is the memo to prove dishonour of cheque for insufficiency of funds. Service of notice is proved by Ext.P4. Return of notice in residential address is proved by Ext.P5. Petitioner contended and stated as DW1 that he had no transaction with respondent No.1. Instead, he had business with one Mohammed. There was some dispute between himself and said Mohammed. That dispute was mediated by respondent No.1 and settled for Rs.Three Lakhs. At that time petitioner gave Ext.P1, cheque to respondent No.1 on condition that on his paying the amount to Crl.R.P.No.2776 of 2009 2 Mohammed the cheque will be returned to him. Petitioner gave Rs.2,84,000/- to said Mohammed but respondent No.1 did not returned the cheque and instead, misused it. Courts below were not impressed by that explanation of petitioner and found him guilty. That finding is under challenge in this revision. 2. Ext.P1, it is admitted and proved contained signature of petitioner. It is also not disputed that the cheque is drawn on the account maintained by him. Though admission of signature does not amount to admission or proof of execution of the instrument, that gives a long way in proving due execution. In this case evidence is given by respondent No.1 regarding transaction and execution of the cheque. On the other hand petitioner has given evidence as DW1 as to in what other manner the cheque came to the custody of respondent No.1. But he has not examined the said Mohammed. There is no reliable evidence to show that there was any dispute between Mohammed and petitioner as alleged and that as part of that settlement Ext.P1 came to the hands of respondent No.1. A further fact to be noted is that though petitioner was served with the notice, he did not reply to it. If actually no amount was due from him to respondent No.1, he would have replied to the notice served on him. There is no acceptable explanation for not replying to the statutory notice. Courts below in the circumstances found in favour of respondent No.1. That finding Crl.R.P.No.2776 of 2009 3 does not call for any interference in the revision. 3. While confirming the direction for payment of compensation and default sentence appellate court had modified the substantive sentence as simple imprisonment for fifteen days. It is contended by learned counsel that substantive sentence imposed is excessive. Learned counsel has also requested six months' time for petitioner to deposit compensation since according to learned counsel, petitioner is unable to raise the amount immediately on account of financial difficulties. Having regard to the nature of offence I am satisfied 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 or the default sentence at the instance of petitioner. Considering the difficulties of petitioner stated by learned counsel petitioner is granted time till 15-01-2010 to deposit compensation. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 15-01-2010 to deposit the compensation. 3. It is made clear that it will be sufficient compliance of the direction Crl.R.P.No.2776 of 2009 4 for deposit of compensation if petitioner paid 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 period aforesaid. 4. Petitioner shall appear in the trial court on 18-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 18-01-2010. THOMAS P JOSEPH, JUDGE Sbna/