IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.Rev.Pet.No. 3889 of 2008() ------------------------------ CRA.455/2003 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)III, MANJERI CC.167/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED ---------------------------------------- C.P.PRASAD, S/O.CHERUPARAMBATH VELU, THRIKKULAM AMSOM DESOM, KARIPPARAMBU(PO), TIRURANGADI. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. KATTUNGAL SUNDARAN, S/O.VELAYUDHAN @ APPUKUTTAN, NEDUVA AMSOM DESOM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.SUDHEER FOR R1 PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3889 of 2008 -------------------------------------- Dated this the 4th day of June, 2009. ORDER Heard counsel for petitioner, first respondent and the Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track (Adhoc)-III, Manjeri in Crl.Appeal No.455 of 2003 confirming conviction but modifying sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.1, petitioner borrowed Rs.2,50,000/- from him on 25.11.1997 agreeing to repay the same within six months and issued Ext.P1, cheque dated 25.5.1998. That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2 and P7 and the evidence of PW2. On getting dishonour intimation respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Notice was returned unclaimed. This is proved by Exts.P4 to P6. Courts below found that there is deemed service of notice on petitioner. On hearing counsel on both sides, I do not find reason to interfere with the above concurrent findings entered by the courts below. 4. As to the due execution of the cheque, respondent No.1 (PW1) has Crl.R.P.No.3889/2008 2 given evidence regarding the transaction and the execution of the cheque. Case of the petitioner is that brother of respondent No.1 had joined two kuries for Rs.70,000/- run by the petitioner and in that transaction, as demanded by the brother of respondent No.1 he issued two signed blank cheques as security since the chitty was not registered. He claimed that Ext.P1 is one among those cheques which was misused by respondent No.1. DW2 is the brother of respondent No.1. His evidence does not in any way improve the case of the petitioner. DW1 is a lawyer who issued Ext.D1, notice to the petitioner as instructed by brother of respondent No.1. Courts below were not impressed by the contention raised by the petitioner and found in favour of due execution of the cheque. Contention raised in the revision is that the said finding is not correct. 5. Ext.D1 shows that petitioner borrowed certain amount from the brother of respondent No.1. it is as per the instruction of brother of respondent No.1 that DW1 issued Ext.D1, notice to the petitioner. That does not in any way affect the transaction pleaded by respondent No.1. There is no evidence or circumstance to show that Ext.P1 is a cheque given by the petitioner to the brother of respondent No.1. So far as that is not proved, contention raised by the petitioner cannot stand. It is also pertinent to note that registered notice sent to the petitioner on behalf of respondent No.1 was returned unclaimed inspite of intimation given to him which means that petitioner was aware of the claim being made by respondent No.1 but did not want to respond to that. Nothing is brought out to disbelieve the evidence of respondent No.1. In these Crl.R.P.No.3889/2008 3 circumstances, I do not find reason to interfere with the findings of the courts below as to the execution of the cheque and that petitioner failed to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 6. So far as direction for payment of compensation is concerned, there is little reason to interfere with that considering the object of legislation. It is seen that though amount borrowed by the petitioner is Rs.2,50,000/- courts below directed payment of compensation of Rs.3,00,000/-. Counsel for respondent No.1 states that the cheque is of the year 1998 and hence the amount awarded is not excessive. Counsel for petitioner submitted that the amount awarded is excessive. True, criminal courts are authorised to consider the interest aspect of the amount involved and award compensation accordingly. In this case respondent No.1 has no case that there was any agreement between him and the petitioner for payment of interest. While awarding compensation the paying capacity of the petitioner has also to be taken into account. According to the learned counsel petitioner is not able to pay so much amount as compensation. Hence considering all relevant aspects including the facts and circumstances of the case, I am inclined to think that compensation of Rs.2,75,000/- is sufficient in the ends of justice. 7. So far as substantive sentence is concerned, on the facts and circumstances of the case, I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. Resultantly, this revision is allowed in part to the following extent: Crl.R.P.No.3889/2008 4 i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Compensation payable by the petitioner is modified as Rs.2,75,000/- (Rupees Two lakhs Seventyfive thousand only). Petitioner is granted three months' time to deposit compensation in the trial court for payment to respondent No.1. In case petitioner fails to deposit the compensation as aforesaid, he shall undergo simple imprisonment for three months. iii. Petitioner shall appear in the trial court on 8.9.2009 to receive the sentence. Crl.M.A.No.11893 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks