IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 CRL.REV.PET.NO. 2750 OF 2009() --------------------------------------------- CRA.50/2004 OF ADDITIONAL SESSIONS COUR (ADHOC-II), THALASSERY CC.342/2000 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- K.M.KUNHIKANNAN, AGED 61 YEARS, S/O.KUNHANANDAN NAIR, SHYNI NIVAS, PALLYAM, THILLENKERI, THALASSERY. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT(S) - RESPONDENT - COMPLAINANT: -------------------------------------------------------------- 1. DINESHAN, S/O.GOVINDAN, PUTHUSSERY, VATTIYAM ROAD, MATTARA, IRITTY, THALASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2750 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Thalassery in in Crl. Appeal No.50 of 2004 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.20,000/- from him on 1.7.1999 and for repayment of that amount issued Ext.P1, cheque dated 27.9.1999. That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment which is proved by Exts.P3 to P5. Respondent No.1 gave evidence as P.W.1 and stated about the transaction and execution of the cheque. Petitioner as D.W.1 deposed that respondent No.1 is his relative and that he had borrowed Rs.5,000/- from him in the year 1998. At that time a cheque was given as security which was misused. Entire amount with Rs.1,500/- by way of interest was paid to respondent No.1 but the signed blank cheque was not returned. Exhibits D1 and D(1a) are letters allegedly sent by respondent No.1. D.W.2 claimed that he saw petitioner giving Rs.1,500/- to respondent CRL. R.P. No.2750 of 2009 -: 2 :- No.1. Courts below did not accept the evidence of petitioner and found him guilty. 2. I have gone through copy of Ext.D1 and D1(a) made available by learned counsel for petitioner for my perusal. Apart from the fact that they are not admitted by respondent No.1, it does not show that any amount was paid to respondent No.1. Letters only show that there was a demand for payment of the amount. Apart from what petitioner stated as D.W.1 there is nothing on record to show that amount borrowed was only Rs.5,000/- or that any portion of the amount borrowed was repaid to respondent No.1. Evidence of D.W.2 was not acceptable to the courts below for the reasons stated in the judgments. Sitting in revision I do not find reason to upset the finding of the courts below as to the acceptability of evidence of D.Ws.1 and 2 and the evidence of respondent No.1 regarding execution of the cheque. Petitioner has failed to rebut the presumption under Section 139 of the Act. Therefore his conviction is unassailable. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.20,000/- to respondent No.1. A default sentence of simple imprisonment for one month was also provided. Appellate CRL. R.P. No.2750 of 2009 -: 3 :- court did not interfere with the substantive sentence, direction for payment of compensation or the default sentence. Learned counsel contended that sentence imposed is excessive. Learned counsel requested six months’ time to deposit compensation. It is stated that petitioner is unable to raise the amount immediately. It is further requested that petitioner may be permitted to pay the compensation directly to respondent No.1. 4. Having regard to the nature of offence and the amount involved I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. However, I find no reason to interfere with the direction for deposit of compensation. At the same time since substantive sentence is modified as above and considering the amount involved I direct that in case of non-payment of compensation petitioner has to undergo simple imprisonment for three months. Considering the circumstances stated by learned counsel I am inclined to grant time till 17.12.2009 to deposit compensation in the trial court as ordered by that court. Resultantly this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to CRL. R.P. No.2750 of 2009 -: 4 :- petitoiner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted time till 17.12.2009 to deposit compensation as ordered by the trial court, for payment to respondent No.1. In case of failure petitioner shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance with 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 compensation within the said period. Petitioner shall appear in the trial court on 19.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv