IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2180 of 2009() ------------------------------ CRA.117/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.244/2007 of JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD .................... REVN. PETITIONER/ APPELLANT/ACCUSED:: -------------------------------------- MOLLY, W/O.RAMACHANDRAN, CHAPRAYIL THEKKETHIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE. BY ADV. SRI.V.ANIL (K/1480/98) RESPONDENTS/RESPONDENTS/ STATE AND COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MOHANACHANDRAN, S/O.V.K.RAMAN, POCHAYIL PADEETTATHIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2180 of 2009 --------------------------------------- Dated this 07th day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Mavelikkara in criminal appeal No.117 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. The case arose on a complaint preferred by respondent No.2. Petitioner alleged that he borrowed Rs.50000/- from him and for repayment of that amount issued Ext.P1, cheque dated 11-01-2007. That the cheque was dishonoured for insufficiency of funds is proved by Exts.P2 and P3. Respondent No.2 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Exts.P4 to P6. Finding of the courts below in that regard is not challenged. Challenge is to the finding regarding execution of the cheque. 3. According to the petitioner he had no transaction with respondent No.2. Instead, he had borrowed money from the wife of respondent No.2 and given signed blank cheque. That amount was Crl.R.P.No.2180 of 2009 2 repaid to her but, the cheque was not returned. It is contended by learned counsel that petitioner has not admitted authenticity of the writings in the cheque and merely admitted the signature which did not amount to admission or proof of execution of the instrument. Respondent No.2 has not proved due execution of the cheque. 4. Respondent No.2 has given evidence regarding the transaction and execution of the cheque. To prove the defence of petitioner, wife of respondent No.2 was examined as DW1. She denied that she lent Rs.10000/- to the petitioner and took signed blank cheque. As regards the contention that petitioner borrowed money from DW1 and gave signed blank cheque to her is concerned, there is no evidence. What is available is only the suggestions made to respondent No.2 (PW1) and DW1 which both have denied. It is admitted that Ext.P1 is signed by petitioner and is drawn on the account maintained by her. It is not necessary that the cheque must be filled up by the drawee herself, even if that contention of petitioner were to be accepted as true. It is also to be noted that in spite of service of statutory notice petitioner did not reply. Courts below considered the evidence and found in favour of due execution of cheque. There is no reason to interfere. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed her to pay Rs.50000/- by Crl.R.P.No.2180 of 2009 3 way of compensation to respondent No.2. No default sentence was provided. Appellate court did not interfere with the sentence or direction for payment of compensation. Learned counsel prayed that the sentence awarded to the petitioner may be modified. 6. Having regard to the facts and circumstances of the case and nature of the offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with direction for payment of compensation at the instance of petitioner. Learned magistrate has not imposed any imprisonment in case of non payment of compensation. Courts have power to direct imprisonment for non payment of compensation. I found that substantive sentence is to be modified as simple imprisonment till rising of the court. To enforce payment of compensation it is necessary to provide default sentence in case of non payment of compensation. Revisional court which is given the power to award compensation necessarily has the power to award default sentence also. In the facts and circumstances of the case I direct that in case of non payment of compensation petitioner has to undergo simple imprisonment for two months. 7. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. It is stated that is not able to raise the entire amount immediately. Having regard to the facts Crl.R.P.No.2180 of 2009 4 and circumstances of petitioner stated by learned counsel I am inclined to grant time till 15-12-2009 to pay compensation. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 15-12-2009 to deposit compensation in the trial court as ordered by learned magistrate. In case of failure petitioner has to under simple imprisonment for two months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through her counsel in the trial court and respondent No.2 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 17-12-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/