IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 2165 of 2009() ------------------------------ CRA.27/2007 of SESSIONS COURT, WAYANAD ST.449/2006 of JUDL. FIRST CLASS MAGISTRATE -II, SULTHAN BATHERY .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------------ ROY JACOB,S/O.JACOB ABRAHAM, KUMBALAPARAMBIL HOUSE, AMBALAVAYAL POST, WAYANAD DISTRICT. BY ADV. SRI.RAFFEEKH.K RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------- 1. SELF GROWTH NIDHI LTD.,KALPETTA BRANCH, REPRESENTED BY ITS MANAGER P.HARIS, S/O.KUTTY HASSAN HAJI, KALPETTA NORTH P.O. KALPETTA AMSOM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM. PUBLIC PROSECUTOR : C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2165 of 2009 --------------------------------------- Dated this 06th day of July 2009 ORDER This revision is in challenge of judgment of learned Sessions Judge, Waynad in criminal appeal No.27 of 2007 confirming conviction and sentence of petitioner for offence punishable under Sec.138 of Negotiable Instruments Act. That case arose on a complaint preferred by respondent No.1, a private limited company. According to respondent No.1, petitioner availed a loan and for repayment of the balance sum of Rs.51,979/-, issued Ext.P1, cheque dated 25-04-05. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. On getting dishonour intimation, respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P4 to P6. Ext.P9 is the reply. Manager of respondent No.1 gave evidence as PW1. Ext.P8 is the computer print out of the account maintained by respondent No.1 concerning the loan Crl.R.P.No.2165 of 2009 2 transaction of petitioner. PW1 gave evidence that for realisation of the amount due, respondent No.1 filed O.S.No.156 of 2002 against petitioner and obtained a decree. In the course of execution of that decree petitioner paid Rs.50000/- and for the balance amount of Rs.51979/- issued the cheque. According to the petitioner, he has paid Rs.24000/- to respondent No.1 and no further amount is due . It is contended by learned counsel that due execution of that cheque is not proved. 2. Ext.P1 is the cheque in question. That, it is drawn on the account maintained by the petitioner and was given to respondent No.1 in connection with the loan transaction are not disputed. Dispute is regarding the balance amount due. Ext.P8 is the computer print of account maintained by respondent No.1. Ext.P8 supported evidence of PW1 regarding the amount due. The petitioner did not adduce evidence to show that as claimed by him, he has discharged the liability. Since a plea of discharge is made by the petitioner he had to prove or atleast probabilise that Crl.R.P.No.2165 of 2009 3 contention. Petitioner has not adduce any such evidence. Courts below have considered the evidence adduced on behalf of respondent No.1 and found in favour of due execution of the cheque. On hearing learned counsel and going through the judgments under challenge I find no reason to interfere with the finding of the courts below regarding due execution of the cheque. Conviction of petitioner does not require interference. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and directed payment of compensation of Rs.55000/-. There was a default sentence of imprisonment for one month. Appellate court did not interfere with the sentence or direction for payment of compensation. Learned counsel submitted that leniency may be shown to the petitioner in the matter of sentence and requested that petitioner may be granted six months' time to pay the compensation. 4. Having regard to the nature of the offence and the object of legislation, I am satisfied that simple imprisonment till Crl.R.P.No.2165 of 2009 4 rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation. But the default sentence for non payment of compensation is fixed as simple imprisonment for two months. Considering the submission of learned counsel regarding the financial difficulty of the petitioner and the amount involved, I am inclined to grant three months' time to the petitioner to deposit the 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.The direction issued by the learned magistrate for payment of Rs.55000/- (Rupees Fifty Five Thousand Only) as compensation to respondent No.1 will remain in force. Petitioner is granted three (3) months time from today to deposit compensation in the trial court failing which he shall undergo simple imprisonment for two (2) months. Crl.R.P.No.2165 of 2009 5 3. 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 its counsel acknowledging receipt of compensation within the period aforesaid. Petitioner shall appear in the trial court on 09-10-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 09-10-2009. THOMAS P JOSEPH, JUDGE Sbna/