IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 2440 of 2009() ------------------------------ CRA.202/2007 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.731/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- NINAN NINAN, AGED 64 YEARS, S/O.LATE NINAN, VADAKKETHALACKAL VEEDU, THAZHAKKARA P.O., MAVELIKARA. BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. K.K.RAMACHANDRA KURUP, PRASANTHY VEEDU, THAZHAKKARA P.O., MAVELIKARA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2440 of 2009 --------------------------------------- Dated this 31st day of July 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. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of concurrent finding entered by the courts below regarding due execution of a cheque for the discharge of a legally enforceable debt/liability. According to respondent No.1, petitioner borrowed Rs.3,00,000/- from him on 11- 04-2004 and issued Ext.P1, cheque dated 11-04-2004 for repayment of that amount. Dishonour of the cheque for insufficiency of funds is proved by 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 spoke to his case. According to the petitioner, he borrowed Rs.200000/- from one Vijayan through one G. Varghese who acted as the mediator and as security a signed blank cheque was given to the said Varghese. He had no transaction with respondent No.1, nor issued any cheque to him. It is contended that finding of court below regarding execution of cheque is not correct. 3. As to the transaction leading to the execution of cheque there is evidence of respondent No.1. Petitioner has not disputed that Crl.R.P.No.2440 of 2009 2 Ext.P1 is signed and drawn on the account maintained by him. His contention that the cheque was entrusted to Varghese and to be given to Vijayan is not proved or probabilised. He has not replied to the statutory notice served on him. He has not examined Vijayan or Varghese to prove or probabilise his case. In these circumstances courts below are justified in holding in favour of due execution of the cheque. I find no reason to interfere. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay Rs.300000/- as compensation. Default sentence of simple imprisonment for two months was also provided. Appellate court did not interfere with the sentence. It is contended that sentence awarded is excessive. Learned counsel requested that petitioner may be granted six months time to pay compensation since petitioner is unable to raise the entire amount immediately. He also requested that petitioner may be permitted to pay compensation directly to respondent No.1. 5. Considering the nature of the offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation. Since substantive sentence is modified it is directed that petitioner shall undergo simple Crl.R.P.No.2440 of 2009 3 imprisonment for three months in case compensation is not paid. Considering the circumstances stated by learned counsel petitoner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision 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 30-12-2009 to deposit compensation in the trial court. In case of failure petitioner has to undergo simple imprisonment for three 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.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 amount within the period aforesaid. 4. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31-12-2009. THOMAS P JOSEPH, JUDGE Sbna/