IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 1673 of 2009() ------------------------------ CRA.329/2005 of ADDL. DISTRICT AND SESSIONS COURTS, FAST TRACK (ADHOC), MAVELIKKARA CC.367/2003 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------- B.PADMA KUMAR, AGED 44 YEARS, S/O. LATE BHAKARAPILLAI, PUTHUVAPADIKKAL VEEDU, VETTUVENI MURI, HARIPPAD.P.O. BY ADV. SRI.M.R.SUDHEENDRAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT -------------------------- 1. M.MANZOOR, MUKKATHIPURAYIDATHIL, NEAR MSM COLLEGE, KAYAMKULAM VILLAGE, KAYAMKULAM.P.O. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28.5.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1673 of 2009 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a complaint preferred by respondent No.1 alleging that cheque (Ext.P1) dated 30.1.2003 issued by the petitioner was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand, petitioner did not pay the amount. 3. Case of respondent No.1 is that petitioner purchased gold ornaments for Rs.40,000/- from him and for discharge of that liability, issued Ext.P1, cheque dated 30.1.2003 which was dishonoured for insufficiency of funds. Inspite of dishonour intimation and demand, petitioner did not pay the amount. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P6. Dishonour of the cheque for the above said reason is proved by Exts.P2 and P3. Issue and service of statutory notice are proved by Exts. P4 to P6. Petitioner did not reply to the notice. 4. Contention of the petitioner is that he had purchased gold ornaments from respondent No.1 for Rs.56,000/-, paid Rs.36,000/- in cash and issued signed blank cheque for Rs.20,000/- and that cheque has been misused. Crl.R.P.No.1673/2009 2 It is contended by the learned counsel that due execution of the cheque is not proved. But I am unable to uphold that contention in the light of the evidence on record. Failure to send a reply to notice is also material. Petitioner does not dispute that Ext.P1 is a cheque drawn on his account and signed by him. It is not disputed that he handed over the cheque to respondent No.1. It is not shown that petitioner had any other transaction with respondent No.1 and for the balance sum of Rs.20,000/- signed blank cheque was given. Nothing was brought out to disbelieve the evidence of respondent No.1. If the amount due from the petitioner was only Rs.20,000/- as claimed by him, normally he would have replied in that way to the notice served on him demanding Rs.40,000/-. He did not do so. In these circumstances, the conviction is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year. He was directed to pay Rs.40,000/- as compensation and in case of default, to undergo simple imprisonment for two months. That has been confirmed by the appellate court. In the facts and circumstances of the case, I am satisfied that simple imprisonment till rising of the court and payment of compensation as directed by the courts below is sufficient in the ends of justice. 6. Counsel for petitioner requested two months' time to deposit the compensation. Counsel submitted that petitioner is arranging to dispose of a portion of his property and raise the necessary funds. In the facts and circumstances, I am inclined to allow that request. Crl.R.P.No.1673/2009 3 Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted two months' time from today to deposit the compensation in the trial court. In case of failure, he shall suffer default sentence as ordered by the trial court. iii. It is made clear that it will be sufficient compliance with the direction for payment 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 the receipt of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on 30.7.2009 to receive the sentence. Crl.M.A.No.5094 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks