IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2556 of 2009() ------------------------------ CRA.15/2008 of ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE ST.2672/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.ALIKUTTY, S/O.MAMMU KOYA, NAYEDATH HOUSE, KOTTAMPARAMBA P.O., KOZHIKODE. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.CALICUT MERCANTILE FINANCE LTD., VYAPARABHAVAN SHOPPING COMPLEX, PO CIVIL STATION, KOZHIKODE-II, REPRESENTED BY VPM MUHAMMED NISSAR, S/O.UMMER KOYA, AGED 35 YEARS, 'AYISHA', CHALIKKARA P.O., CIVIL STATION. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2556 of 2009 -------------------------------------- Dated this the 10th 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 it. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode in Crl.Appeal No.15 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 subscribed to a kuri run by it, prized the same and received the amount on 8.1.2001 undertaking to pay the said amount in instalments. Petitioner defaulted payment of the instalments and as on 1.10.2004 Rs.48,000/- was due from the petitioner. For repayment of that amount petitioner issued Ext.P3, cheque dated 1.10.2004. That cheque was dishonoured for insufficiency of funds as proved by Exts. P3 and P4. Service of statutory notice on petitioner is proved by Ext.P5 series. PW1 gave evidence on behalf of respondent No.1. Exts.P1 and P2 are copy of the resolutions as per which respondent No.1 decided to file complaint against petitioner and authorized PW1 to give evidence on its behalf. According to the petitioner no such amount as stated in Ext.P3 is due to respondent No.1. Instead the signed Crl.R.P.No.2556/2009 2 blank cheque given at the time of joining the kuri was misused. Petitioner proved Exts.D1 to D5. Courts below were not impressed by that and found in favour of due execution of the cheque. In this case execution of the cheque is under challenge. It is contended that in the light of Exts.D1 and D2 and evidence of DW1, that finding cannot be sustained. Exts.D3 to D5 are receipts dated 7.4.2004, 3.7.2002 and 23.7.2004, respectively. It is not disputed that those receipts are issued by respondent No.1. According to respondent No.1, the sum of Rs.48,000/- was due as on 1.10.2004. That was after Exts.D3 to D5. Exts.P6 series and P7 series are the ledger and day book of respondent No.1 relating to the transaction of petitioner. There is no contradiction between Exts.D2 and D3 and relevant entries in Exts.P6 and P7. So far as Ext.D1 is concerned that is a letter dated 20.9.2004, admittedly issued by respondent No.1 in favour of petitioner demanding Rs.47,640/-, but as on 5.9.2004. Learned magistrate has observed that it is one month thereafter that respondent No.1 claimed Rs.48,000/- and hence together with interest payable, amount due as on 1.10.2004 came to Rs.48,000/-. Thus Ext.D1 also is not in any way helpful to the petitioner. What remained is Ext.D2, pass book issued by respondent No.1. Learned counsel would contend that as per the endorsement in Ext.D2, the amount payable as on 5.4.2004 was only Rs.36,580/-. Therefore, the amount mentioned in Ext.P3 is not due to respondent No.1, it is contended. 3. Endorsement relied on by the learned counsel from Ext.D2 is a pencil mark that as on 5.4.2004 Rs.36,580/- was due. According to the Crl.R.P.No.2556/2009 3 petitioner that endorsement was made by the secretary of respondent No.1. But PW1 denied that. There is no acceptable evidence as found by the courts below to show that the said endorsement was made by respondent No.1. Sitting in revision I find no reason to interfere with that finding. Hence Ext.D2 also cannot help the petitioner to substantiate his contention. Courts below have referred to the evidence of PW1 supported by relevant entries in Exts.P6 and P7 to show that amount referred to in Ext.P3 is due to respondent No.1. Due execution of the cheque for the discharge of a legally enforceable debt/liability is proved. Petitioner has failed to rebut the presumption under Section 139 of the Act. Hence conviction required no interference. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for five months. That was confirmed by learned Additional Sessions Judge. It is contended that sentence imposed is excessive. 5. Object of incorporating Section 138 of the Act is to give credibility for transaction by way of cheque. It is said that normally the offence punishable under Section 138 of the Act does not involve moral turpitude. Therefore I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time respondent No.1 who suffered loss on account of dishonour of the cheque has to be compensated. Section 357(4) of the Code of Criminal Procedure (for short, “the Code”) empowers the revisional court to award compensation. In the facts and circumstances of the case and after hearing learned counsel for petitioner I consider that Rs.50,000/- will be sufficient Crl.R.P.No.2556/2009 4 compensation for respondent No.1. 6. Learned counsel requested that petitioner may be permitted to pay compensation directly to respondent No.1. The further request is that since petitioner on account of financial difficulties is unable to raise the amount immediately, he may be granted five months’ time to deposit compensation. 7. Having regard to the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 21.12.2009 to deposit compensation. In case of failure petitioner has to undergo simple imprisonment for three months . 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 directed to deposit in the trial court on or before 21.12.2009 Rs.50,000/- (Rupees fifty thousand only) by way of compensation for payment to respondent No.1 under Section 357(3) of the Code. In case of failure petitioner has to undergo simple imprisonment for three months. iii. The amount if any deposited by the petitioner in any of the courts below shall be adjusted in the compensation ordered to be paid hereby. Such amount if any in deposit can be withdrawn by respondent No.1. iv. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation or balance payable as the case may be to respondent No.1 through his counsel in the trial Crl.R.P.No.2556/2009 5 court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 22.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks