IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2482 of 2009() ------------------------------ CRA.741/2008 of ADDL.SESSIONS JUDGE(ADHOC-II) ERNAKULAM CC.1900/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SOBHANA, D/O.KUNJAN, VELUTHEDATH HOUSE, TRICHETTUKULAM P.O., PANAVALLY PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV. SRI.VARGHESE.J.PUNNACHALIL RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. K.R.SALIM KUMAR, S/O.K.S.RAMACHANDRAN, KALATHUMKADAVU, EDAKOCHI P.O., KOCHI-6. 2. STATE OF KERALA, REP.BY 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 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2482 of 2009 -------------------------------------- Dated this the 4th 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. Concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of legally enforceable debt/liability and consequent conviction and sentence are under challenge. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Kochi in C.C.No.1900 of 2006 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 10.6.2006 and executed a demand promissory note. When respondent No.1 demanded repayment petitioner issued Ext.P1, cheque dated 19.8.2006 for the said amount. That cheque was dishonoured for insufficiency of funds as seen from 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 spoke to his case. According to the petitioner, she had no transaction with respondent No.1. Instead, in connection with a transaction she had with the brother-in-law of respondent No.1 she had given signed blank cheque which has been misused. Courts below did not accept the evidence of petitioner and found Crl.R.P.No.2482/2009 2 in favour of the due execution of the cheque for discharge of a legally enforceable debt/liability. 3. It is not disputed that Ext.P1 contained the signature of petitioner and that the cheque is drawn on the account maintained by her. There is no evidence to show that petitioner had handed over the cheque to the brother-in- law of respondent No.1. Respondent No.1 denied that suggestion. Petitioner has not replied to the statutory notice served on her. There was nothing to disbelieve the evidence of respondent No.1. As such courts below rightly found in favour of due execution of the cheque. I do not find reason to interfere with that finding. 4. Appellate court has modified the substantive sentence as simple imprisonment till rising of the court. Though learned magistrate had sentenced petitioner for payment of fine of Rupees one lakh with a default sentence of imprisonment for six months and directed that fine if realised Rs.85,000/- will be given to respondent No.1 as compensation, appellate court modified the fine as Rs.50,000/- with a default sentence of imprisonment for one month and directed that fine if realised will be given to respondent No.1 as compensation. 5. Learned counsel requested that fine may be converted as compensation payable directly to respondent No.1. Learned counsel also requested that petitioner may be granted six months' time to deposit compensation since according to the learned counsel, petitioner is unable to raise the amount immediately on account of financial difficulties. Having regard to the nature of offence I am inclined to think that fine can be converted as Crl.R.P.No.2482/2009 3 compensation payable to respondent No.1. Considering the circumstances stated by learned counsel petitioner is granted time till 30.12.2009 to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for two months. Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the appellate court sentence of fine is set aside and instead, petitioner is directed to deposit Rs.50,000/- (Rupees fifty thousand only) in the trial court for payment to respondent No.1 by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner has to undergo simple imprisonment for a period of two months. ii. 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 her 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 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks