IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 494 of 2002() ----------------------------- CRA.129/1997 of ADDL. SESSIONS COURT, FAST TRACK II, PALAKKAD ST.1395/1995 of J.F.C.M., MANNARKKAD .................... REVN. PETITIONER(S):APPELLANT/ACCUSED: -------------------------------------------------------- P.M. SIMON, S/O. P. MATHEW, PULLIKKATTIL HOUSE, PALAKKAYAM P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------- 1. P. UNNIKRISHNAN, S/O. MADHAVAN, MALATHE HOUSE, VANIYAMPARA, POTTASSERY AMSOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SANTHEEP ANKARATH FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.494 of 2002 -------------------------------------- Dated this the 27th day of November, 2008. ORDER Heard both sides. 2. Following points arose for consideration:- I. Whether conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act ( for short, ‘the Act’) is legal and proper? II. Whether sentence is excessive? 3. Perused the records. 4. Point No.I. Case of the first respondent/complainant is that revision petitioner borrowed Rs.35,000/- from him in March, 1995 and issued Ext.P1, cheque for discharge of the debt. He presented the cheque for encashment but it was returned for insufficiency of funds as per Ext.P2, memo. That was followed by Ext.P3, notice intimating the dishonour and demanding payment. Though notice was served on 22.7.1995 as seen from Ext.P4, there was no response. Learned magistrate tried the revision petitioner in S.T.No.1395 of 1995, found him guilty and sentenced him to undergo simple imprisonment for three months and payment of fine of Rs.5,000/-. He preferred an appeal to the Sessions Court, Palakkad. Learned Additional Sessions Judge dismissed the appeal Crl.R.P.No.494/2002 2 confirming the conviction and sentence. Hence, this revision. 5. It is contended by learned counsel that revision petitioner had no transaction with the first respondent and that he had not issued any cheque in favour of the first respondent. Counsel for the first respondent supported the concurrent findings entered by the courts below. 6. First respondent gave evidence as PW1 regarding the alleged transaction. He claimed that revision petitioner borrowed the amount from him in March, 1995 and issued Ext.P1. It was suggested to him that revision petitioner had some transaction with one Sadanandan and had given a signed blank cheque to Sadanandan which was misused by him. Though first respondent admitted that Sadanandan is a distant relative of his, denied the further suggestion. He claimed that he had half acre of agricultural land and is engaged in plantation cultivation. 7. There is nothing to disbelieve the evidence of first respondent. Mere fact that the date of cheque is not stated in the complaint is not fatal since prosecution is for the offence under Section 138 of the Act for dishonour of the cheque for insufficiency of funds and non-payment of the amount covered by the cheque within the prescribed time. That, inspite of being served with a notice, revision petitioner did not respond to it is an added circumstance against the revision petitioner. I have gone through the evidence and find no illegality or irregularity in the concurrent findings entered by the courts below calling for interference. Crl.R.P.No.494/2002 3 8. Point No.II. So far as sentence is concerned, it submitted by the learned counsel that revision petitioner is sick and undergoing treatment. He produced for my perusal photocopy of case summary and discharge card issued from Sreechithirathirunal Medical Science and Technology concerning one Simon aged 30 years. That document speaks about the treatment given to said Simon. In the facts and circumstances and considering the nature of offence and amount involved, I am of the view that simple imprisonment till rising of the court is sufficient to meet the ends of justice. At the same time, first respondent who has suffered loss at the hands of the revision petitioner is to be compensated. Hence revision petitioner is directed to pay compensation of Rs.40,000/- to the first respondent within three months from this day failing which, he has to undergo simple imprisonment for three months. Revision petition therefore, is allowed in part in the following lines:- i. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. ii. Revision petitioner is directed to deposit in the trial court for payment to the first respondent as compensation Rs.40,000/- (Rupees Forty thousand only) within three months from this day failing which, revision petitioner shall undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance with direction No.(ii) if the revision petitioner paid the amount to the first respondent through his counsel in the trial court and a statement is filed by the first Crl.R.P.No.494/2002 4 respondent through his counsel in the trial court within the said period of three months acknowledging receipt of the amount. iv. The amount if any deposited by the revision petitioner in the trial court pursuant to the order of this Court shall be adjusted in the compensation referred to in clause (ii) above. v. Revision petitioner shall surrender in the trial court on 4.3.2009 to receive the sentence. vi. Bail bond is cancelled. Crl.M.P.No.3295 of 2002 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.494/2002 5 Thomas P.Joseph, J. Crl.R.P.No.494 of 2002 ORDER 27th November, 2008.