IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2144 of 2009() ------------------------------ CRA.184/2006 of ADDL.SESSIONS JUDGE, ADHOC-II, THALASSERY CC.16/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- THOMAS, S/O.SKARIA, AGED 66 YEARS, ANTHYAMKULAM HOUSE, NUCHIYAD, TALIPARAMBA, KANNUR. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. BABU, S/O.VARKEY, OZHAKKANATTU HOUSE, NUCHIYAD, TALIPARAMBA, KANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISNNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2144 of 2009 -------------------------------------- Dated this the 7th 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 and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Thalassery in Crl.Appeal No.184 of 2006 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case arose on a private complaint preferred by respondent No.1 alleging that petitioner borrowed Rs.40,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 23.9.1997. On presentation for encashment, the cheque was dishonoured for insufficiency of funds. Petitioner was served with statutory notice intimating dishonour and demanding payment of the amount. Cause of dishonour as above stated and issue and service of notice are proved by Exts.P2 to P4. Respondent No.1 gave evidence as PW1. 3. Challenge is to the alleged execution of the cheque for discharge of debt/liability. According to the petitioner he had borrowed Rs.5,000/- from respondent No.1 on a prior occasion and given signed blank cheque as security. He did not adduce any evidence or bring out any circumstance to prove or Crl.R.P.2144/2009 2 probabilise that contention. Courts below were impressed by the evidence of respondent No.1 and found petitioner guilty. 4. It is true that petitioner has a case as to how else the cheque happened to be in the custody of respondent No.1. Respondent No.1 when examined as PW1 admitted that he had some prior transactions with petitioner but that did not mean that the cheque was given in connection with those transactions. Nothing is brought out to disbelieve the evidence of respondent No.1. Petitioner did not reply to the notice served on him. What is available is only the mere suggestion to respondent No.1 which he denied. In the circumstances, contention of learned counsel that due execution of the cheque is not proved, cannot be accepted. Courts below have considered the evidence and come to the conclusion that petitioner issued the cheque for the discharge of liability towards respondent No.1. On the facts, evidence and materials on record no interference is called for in revision with that finding. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.60,000/- to respondent No.1 and in default of payment, to undergo simple imprisonment for one month. Learned Sessions Judge modified the substantive sentence as simple imprisonment till rising of the court and modified the amount of compensation payable as Rs.40,000/- while retaining the default sentence of simple imprisonment for one month. There is no reason to interfere with the sentence as modified by the appellate court. Crl.R.P.2144/2009 3 6. Learned counsel requested that petitioner may be granted four months’ time to deposit compensation in the trial court. Counsel states that on account of financial difficulties petitioner is unable to raise the amount immediately. He also requested that petitioner may be permitted to pay compensation directly to respondent No.1. Considering the circumstances stated by learned counsel I am inclined to grant three months’ time to the petitioner to deposit compensation in the trial court as ordered by the appellate court and in default of payment, he shall undergo imprisonment as ordered by the appellate court. Resultantly this revision fails. It is dismissed. Petitioner is granted three months’ time from today to deposit compensation in the trial court as ordered by the appellate court. 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 compensation within the said period of three months. Petitioner shall appear in the trial court on 9.10.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks