IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 2496 of 2009() ------------------------------ CRA.623/2008 of ADDL. SESSIONS COURT, FAST TRACK COURT NO.II, (ADHOC), THRISSUR CC.1164/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/APPELLANT/ACCUSED ---------------------------- SHAHUL HAMEED, S/O.HYDROSEKUTTY, THARAYIL AMBALATH VEETTIL, THIRUVENKITAM DESOM, ERINGAPRAM, CHAVAKKAD. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE -------------------------- 1. ABDUL JALEEL, S/O.ABDUL KHDER, PUZHANKARAYILLATH HOUSE, CHALINGAD, KAIPAMANGALAM. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2496 of 2009 -------------------------------------- Dated this the 5th 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. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Kodungallur in C.C.No.1164 of 2007 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner issued Ext.P1, cheque dated 20.10.2007 for Rs.3,50,000/- for the discharge of a liability towards him. 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 testified to his case. According to him, the transaction which gave rise to the liability was on 20.9.2007. Petitioner has a different version. When questioned under Section 313 of the Code of Criminal Procedure and in his evidence as DW1 he stated that respondent No.1 is a real estate broker. Petitioner had purchased land from one Mohinudeen which was negotiated by respondent No.1. As brokerage petitioner paid Rs.10,000/- to respondent No.1. Later, petitioner sold that land for a higher price. Respondent No.1 demanded commission. Petitioner did not oblige. The Crl.R.P.No.2496/2009 2 signed blank cheque petitioner had given to respondent No.1 was misused. Petitioner examined DW2 also in proof of that. DW2 supported petitioner. It is contended by learned counsel that due execution of the cheque is not proved and courts below ought to have accepted the evidence of DWs 1 and 2. 3. To prove the transaction, liability and execution of the cheque respondent No.1 relies on Ext.P7, agreement allegedly executed by petitioner and respondent No.1. In that agreement there is reference to the liability of petitioner towards respondent No.1 to the extent of Rs.3,50,000/- and petitioner issuing the cheque in question for the discharge of that liability. Proof for Ext.P7 comes from DW2 who admitted that he is an attestor in Ext.P7. But in cross examination he claimed that he had not seen the execution of Ext.P7. In the light of Ext.P7 that version of DW2 is not believable. Courts below therefore found in favour of due execution of Exts.P1 and P7. On going through the judgments under challenge and hearing learned counsel for petitioner I find no reason to differ from the view taken by the courts below that evidence of DWs 1 and 2 cannot be accepted. It is also to be noted that inspite of being served with statutory notice petitioner did not reply to it. In these circumstances there is no reason to interfere with the finding entered by the courts below as to the due execution of the cheque. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year. There is also a direction for payment of compensation of Rs.3,50,000/-. But no default sentence has been imposed for Crl.R.P.No.2496/2009 3 non-payment of compensation. Appellate court did not interfere with the substantive sentence or the direction for payment of compensation. It is contended by the learned counsel that sentence awarded is excessive. He pleaded for leniency. Learned counsel requested that petitioner may be granted six months' time to deposit compensation since according to him, petitioner is not able to raise the entire amount immediately due to financial difficulties. Having regard to the nature of offence and object of legislation I am of the view that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation at the instance of petitioner. It is by now settled that courts are vested with the power to impose default sentence for non-payment of compensation as a measure of enforcing the direction for payment of compensation. Therefore learned magistrate ought to have imposed default sentence for non-payment of compensation. Since compensation is not part of the sentence there is nothing illegal in revisional court imposing a default sentence while modifying the substantive sentence. Such a course would not amount to enhancement of the sentence. Considering the circumstances stated by learned counsel I am inclined to grant time to the petitioner till 30.12.2009 to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for four months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified Crl.R.P.No.2496/2009 4 as simple imprisonment till rising of the court. ii. Petitioner is granted time till 30.12.2009 to deposit compensation as ordered by the learned magistrate. In case of failure petitioner has to undergo simple imprisonment for four months. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid the 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 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