IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.REV.PET.NO. 3751 OF 2008() ------------------------------------------- CRA.192/2005 OF ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD CC.903/2002 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): REVN. PETITIONER/ACCUSED ------------------------------------------------------------------------- MUSTAPHA @ MUTHU, AGED ABOUT 40 YEARS, S/O.HAMSA HAJI, VARAMANGALATHU VEEDU, KARAKKADU.P.O.,KONDURKARA, OTTAPALAM TALUK, PALAKKAD. BY ADV. SRI.V.JOHN SEBASTIAN RALPH SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------- 1. SHAHUL HAMEED, AGED 41 YEARS, S/O. MUHAMMED, PULAKKAL HOUSE, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.T.D.RAJALAKSHMI FOR R1 SRI.R.SREEHARI FOR R1 BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3751 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of August, 2009 O R D E R -------------- Heard learned counsel for petitioner and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), Palakkad in Crl. Appeal No. 192 of 2005 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.3,00,000/- from him on 15.7.2002 undertaking to repay the same within two months and on his demanding repayment after the said period, petitioner issued Ext.P1, cheque dated 24.9.2002. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2. Service of notice on petitioner is proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and testified to his case. Though when questioned under Section 313 of the Code of Criminal Procedure petitioner has no specific case as to the transaction and alleged execution of the cheque it was suggested to respondent No.1 when the latter was in the box that petitioner had borrowed Rs.25,000/- and as security for that amount respondent No.1 obtained three signed blank cheques and one of those cheque has been misused. Respondent No.1 denied that CRL.R.P. No.3751 of 2008 -: 2 :- suggestion. Courts below found that due execution of the cheque is proved. It is contended in this revision that due execution of the cheque is not proved. 3. It is not disputed that petitioner had money transaction with respondent No.1 and it was in that transaction that cheque in question was given to respondent No.1 Though petitioner has a contention that amount borrowed is only Rs.25,000/-, respondent No.1 obtained three signed blank cheques and one of those cheques has been misused what is available is only the suggestion put to respondent No.1 which he denied. Petitioner did not reply to the notice in spite of the fact that a fairly big amount was claimed from him as per the cheque in question. Courts below found that there is no reason to disbelieve the evidence of respondent No1. In the circumstances there is no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for nine months and directed payment of Rs.3,15,000/- by way of compensation to respondent No.1 under Sec.357(3) of the Code. A default sentence of imprisonment for three months was also provided. Appellate court while modifying the substantive sentence as simple imprisonment till rising of the court directed payment of compensation of Rs.3,50,000/- and modified default sentence as six CRL.R.P. No.3751 of 2008 -: 3 :- months. It is contended by learned counsel that there was no justification in the appellate court enhancing the compensation payable to Rs.3,50,000/-. It is also contended that default sentence (six months) is illegal since at the time the offence was committed, maximum imprisonment that could be awarded was one year and hence default sentence cannot be more than one fourth of such punishment. Learned counsel requested that compensation payable may be modified. It is also requested that considering the financial difficulties petitioner may be granted six months' time to pay compensation and that petitioner may be permitted to pay the compensation directly to respondent No.1 5. I have heard counsel for respondent No.1 on the submission of counsel for petitioner. Learned magistrate after considering the amount covered by the cheque and all other relevant circumstances fixed Rs.3,15,000/- as the compensation payable. On considering the submission of learned counsel and all relevant circumstances I am satisfied that compensation payable can be fixed as Rs.3,15,000/- as ordered by learned magistrate. I am inclined to grant time till 21.12.2009 to deposit the compensation. Resultantly this revision petition is allowed in part to the following extent: CRL.R.P. No.3751 of 2008 -: 4 :- (i) While retaining the substantive sentence as modified by the appellate court, amount of compensation payable is modified as Rs.3,15,000/- (Rupees Three lakhs and fifteen thousand only). (ii) Petitioner is granted time till 21.12.2009 to deposit compensation in the trial court failing which he shall undergo simple imprisonment for three month. (iii) It is made clear that it shall be sufficient compliance with 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 compensation within the said period. Petitioner shall appear in the trial court on 23.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv