IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 2602 of 2009() ------------------------------ CRA.597/2008 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.690/2007 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAJAN, S/O.SUKUMARAN, AGED 49, SREEBHAVANAM, KOMANA, AMBALAPPUZHA, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENT(S)/RESPONDENTS/COMPLAINANT -------------------------- 1. SURENDRANATH, S/O.SUKUMARAN, AGED 65, SARASWATHY BHAVAN, KARUKAYIL WARD, THATHAMPILLY P.O., ALAPPUZHA. 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 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2602 of 2009 -------------------------------------- Dated this the 12th 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. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track-II, Alappuzha in Crl.Appeal No.597 of 2008 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner availed loan of Rs.75,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 30.10.2007. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Statutory notice was served on petitioner intimating dishonour and demanding payment of the amount. Petitioner did not respond. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, in connection with the financial transactions petitioner had with respondent No.1 a signed blank cheque was given as security and that cheque has been misused. It is contended that due execution of the cheque is not proved. 3. It is true that the mere fact that petitioner has admitted signature in the cheque does not amount to admission or proof of execution of the cheque. Crl.R.P.No.2602/2009 2 But admission of signature in the cheque went a long way in proving due execution of the cheque. In this case respondent No.1 has given evidence as PW1 about the transaction leading to the execution of the cheque. Petitioner has admitted that he had financial transactions with respondent No.1 and that in connection with that transactions the cheque though according to him in signed blank form was given. Even if the cheque is in blank form it was well within the power of respondent No.1 to present the cheque for the amount due to him. In this case petitioner was served with a statutory notice but there was no response. Petitioner, apart from suggesting to respondent No.1 that signed blank cheque was given as security did nothing to bring out circumstances to prove his contention. In these circumstances courts below accepted the evidence of respondent No.1 and found petitioner guilty. I find no reason to interfere with the conviction of petitioner. 4. Learned Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for three months, payment of fine of Rs.75,000/- and awarded default sentence of imprisonment for three months. Appellate court did not interfere with the sentence. It is contended that sentence awarded is excessive. Learned counsel requested that substantive sentence may be modified and fine may be converted as compensation payable to respondent No.1 directly. Learned counsel also requested that petitioner may be granted five months' time to deposit/pay such compensation as he is in a financially difficult situation. 5. Having regard to the facts and circumstances and the nature of Crl.R.P.No.2602/2009 3 offence I am inclined to allow the above said requests. 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. Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.75,000/- (Rupees Seventyfive thousand only) by way of compensation on or before 12.1.2010 failing which 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 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 the compensation within the above said time. Petitioner shall appear in the trial court on 13.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks