IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2108 of 2009() ------------------------------ AGAINST JUDGMENT IN CRA.76/2009 of ADDL.SESSIONS JUDGE (ADHOC-II) ERNAKULAM DATED 7.5.2009 IN CC.2556/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM DT.31.10.08 .................... REVN. PETITIONER: APPELLANT/ACCUSED. -------------------------------------------------- LISSY FRANCIS, W/O.C.A.FRANCIS, AGED 49 YEARS, CHACKALAKKAL HOUSE, SOUTH CHITTOOR P.O., EDAUAKUNNAM PANCHAYATH. BY ADV. MR.SAIBY JOSE KIDANGOOR RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA RERESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. C.S.BIJU, S/O.LATE C.A.SUNDARAN, CHERIYAPADATH HOUSE, SASTHRI ROAD, VADUTHALA P.O., KOCHI-682 023. PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2108 of 2009 --------------------------------------- Dated this 03rd day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public prosecutor took notice for respondent No.1. 2. This revision is in challenge of concurrent finding entered by the courts below regarding execution of a cheque for discharge of a legally enforceable debt/liability. Petitioner is found guilty of offence punishable under Sec.138 of Negotiable Instruments Act (for short, “the Act”) on a complaint preferred by respondent No.2. He alleged that petitioner borrowed Rs.60,000/- from him and for repayment of that amount issued Ext.P1, cheque. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Issue and service of statutory notice on petitioner intimating dishonour and demanding payment of the amount are proved by Ext.P3 and P4. Respondent No.2 gave evidence as PW1. Case set up by petitoner is that she had given the cheque to the mother of respondent No.2 as security and had no transaction with respondent No.2. When questioned under Sec.313 of the Code of Criminal Procedure petitioner requested learned magistrate to grant time to pay the amount. She did not adduce any evidence in support to the contention she raised. Courts below found that due execution of the cheque is proved. Crl.R.P.No.2108 of 2009 2 3. So far as execution of the cheque is concerned evidence is given by respondent No.2. Petitioner was not able to prove or even probabilise that the cheque was given to the mother of respondent No.2 as security. She did not also reply to the statutory notice served on her. Nothing is brought out to disbelieve the evidence of respondent No.2. Courts below found in favour of due execution of the cheque. There is no reason to interfere with the concurrent finding. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one month and to pay fine of Rs.83,000/- with default sentence of imprisonment for one month. Appellate court modified the substantive sentence as simple imprisonment till rising of the court and the fine payable as Rs.60000/-. Default sentence of one month was confirmed. 5. Learned counsel requested that sentence of fine may be converted as compensation payable to respondent No.2 and that petitioner may be granted four months' time to pay the compensation. According to the learned counsel, petitioner is placed in difficult financial situation. Having regard to the nature of offence I am inclined to think that fine can be converted as compensation payable tor respondent No.2. Considering the circumstances state by learned counsel, three months' time is granted to the petitioner to pay the compensation. Crl.R.P.No.2108 of 2009 3 Resultantly this revision is allowed in part to the following extent; (i)While retaining the substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.60,000/- (Rupees Sixty Thousand Only) as compensation within three months' from this day failing which petitioner shall undergo simple imprisonment for two (2) months. (ii)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 her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the comp within the period aforesaid. (iii)Petitioner shall appear in the trial court on 05-11-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/