IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl. Rev. Pet. No. 1939 of 2009 ------------------------------ CRA.645/2007 of ADDL.SESSIONS COURT, KOTTAYAM CC.68/2004 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------------------------- C.K.SUBIER,CHERUVALLITHARA HOUSE, THIRUVARPPU P.O., KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. RAJESH.M.C.,MOOZHIMUGHAM, ARPOOKARA WEST P.O., KOTTAYAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1939 of 2009 --------------------------------------- Dated this 22nd day of June 2009 ORDER Notice to respondent No.1 is dispensed in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in Crl. Appeal No. 645 of 2007 confirming conviction and sentence on petitioner for offence punishable under Sec.138 of Negotiable Instruments Act. Respondent No.1 filed a private complaint alleging that petitioner borrowed Rs. 25,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 22/08/03. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2 and P3, memos dated 29/08/03 and 01/09/03. On getting dishonour intimation respondent No.1 issued notice to the petitioner on 15/09/03 intimating dishonour and demanding payment of the amount. Issue and service of notice are Crl.R.P.No.1939/09 2 proved by Ext.P4 to Ext.P6. There is no challenge regarding the finding of the courts below as to the cause of dishonour, issue and service of notice on the petitioner. Challenge is to the finding regarding execution of the cheque. 3. Respondent No.1 gave evidence as PW1 and stated that petitioner borrowed Rs.25,000/- from him and issued the cheque for repayment of that amount. When questioned under Sec.313 of the of Criminal Procedure, petitioner claimed that he had borrowed Rs.5,000/- from one Balachandran and at that time given a signed blank cheque (Ext.P1) as security. That was misused by respondent No.1. 4. It is not disputed that Ext.P1, cheque contained signature of petitioner and that it is drawn on the account maintained by him. That cheque is produced by respondent No.1 in the trial court. Before filing the complaint he had given statutory notice to the petitioner which was served on him on 24/09/03. Petitioner did not reply to that notice. There is no evidence or any circumstances to prove or even probalise that petitioner had handed over Ext.P1 to Balachandran in the circumstances pleaded by him. Nothing was brought out to disbelieve evidence of respondent No.1 regarding the transaction and execution of Crl.R.P.No.1939/09 3 the cheque. Courts below considered the evidence and found that evidence of respondent No.1 is reliable. I find no reason to interfere with that finding. Due execution of the cheque is proved beyond reasonable doubt. Petitioner has failed to rebut the presumption under Sec.139 of the Act. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for 15 days. Petitioner was directed to pay compensation of Rs.25,000/- to respondent No.1 and in default of payment to undergo simple imprisonment for 15 days. 6. Appellate court confirmed the conviction and sentence. Learned counsel requested that the leniency may shown to the petitioner. He also requested for three months' time to deposit compensation. 7. Considering the nature of offence and amount involved, I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere the direction for payment of compensation. Since substantive sentence is modified, petitioner has to undergo simple imprisonment for one month in case of non-payment of compensation. He is granted three months Crl.R.P.No.1939/09 4 time from today to deposit compensation. 8. Resultantly, this revision is allowed in part to the following extend; (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted three months time from today to deposit compensation of Rs.25,000/-(Rupees Twenty Five Thousand Only) in the trail court for payment to respondent No.1 failing which he shall undergo simple imprisonment for one month. (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 amount within the aforesaid period of three months. (iv) Petitioner shall appear in the trail court on 24/09/09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/