IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2805 of 2009() ------------------------------ CRA.669/2004 of ADDL.SESSIONS COURT (ADHOC)-I, MANJERI ST.62/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.P.YAHUTTY, S/O.AHAMMED HAJI, CHERUPARAMBIL HOUSE, PROPRIETOR, THIRUNAVAYA WOOD INDUSTRIES AND SAW MILL, THAYATHRA P.O., THIRUNAVAYA. BY ADV. SRI.SAJU.S.A RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. M/S.NOOR TIMBERS, REPRESENTED BY ITS MANAGING PARTNER, DOOR NO.EP 6/34 A, EDAVANNA P.O., ERNAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2805 of 2009 -------------------------------------- Dated this the 27th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Manjeri in S.T.No.62 of 2004 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner purchased 100 teak poles from it on 2.8.2003 at the rate of Rs.1,500/- per poles. Price payable including sales tax amounted to Rs.1,60,000/-. Petitioner agreed to pay that amount within one month. Petitioner issued cheques dated 16.8.2003 for Rs.10,000/- and dated 10.9.2003 for Rupees one lakh. The subject matter of this case is Exts.P3 and P4, cheques dated 16.8.2003 for Rs.10,000/- and 10.9.2003 for Rupees one lakh. Those cheques were dishonoured for insufficiency of funds as proved by Exts.P5 to P7. Service of statutory notice on petitioner is proved by Ext.P8 series. PW1 has given evidence on behalf of respondent No.1 and testified to the transaction leading to execution of the cheques. Petitioner denied the entire transaction. Courts below found in favour of due execution of the cheques. Contention raised in the revision petition is that due execution of the Crl.R.P.No.2805/2009 2 cheques is not proved. 3. PW1 has given evidence about petitioner purchasing teak poles from respondent No.1 and in partial discharge of the liability issuing Exts.P3 and P4 for total sum of Rs.1,10,000/-. Petitioner does not dispute that Exts.P3 and P4 are signed by him or that same are drawn on the account maintained by him. Though he made a clean denial of the transaction as such he did not explain how else the cheques happened to be in the custody of respondent No.1. Respondent No.1 is a partnership firm of which PW1 is the managing partner. It is also pertinent to note that inspite of being served with statutory notice petitioner did not reply to it. Courts below have considered these circumstances to find in favour of due execution. On hearing learned counsel and going through the judgments under challenge I do not find reason to differ from the finding entered by the courts below. Petitioner has failed to rebut the presumption under Section 139 of the Act as well. As such the conviction of petitioner does not require interference. 4. While confirming direction for payment of compensation to the tune of Rs.1,10,000/- and default sentence of imprisonment for three months, learned Sessions Judge modified substantive sentence as simple imprisonment till rising of the court. 5. Section 357(4) of the Code of Criminal Procedure enables the Crl.R.P.No.2805/2009 3 revisional court to award compensation. That provision takes in the power to re- fix compensation awarded to ensure that the victim got just compensation. Therefore in appropriate cases where compensation awarded by the courts below is found not just, it is well within the power of revisional court to re-fix compensation so that it is just compensation for the victim. In this case, transaction was commercial in nature and was in the year 2003. Even after the disposal of the appeal, it is after 908 days that this revision petition is filed. I condoned the delay without notice to respondent No.1 also taking into account the manner in which this revision petition is proposed to be disposed of. That, there was no wilful laches or delay on the part of petitioner in filing the revision does not mean that respondent No.1 should suffer. Respondent No.1 has suffered loss by non-payment of the amount due on time. Petitioner has been enjoying the benefit of the transaction without paying the price of goods he purchased. Petitioner has no case that he has paid any amount to respondent No.1. Considering facts and circumstances of the case petitioner has to pay compensation of Rs.1,17,500/- (Rupees One lakh seventeen thousand and five hundred only) to respondent No.1 failing which he has to under go simple imprisonment for three months. Considering the financial difficulties of the petitioner expressed by learned counsel petitioner is granted time till 15.12.2009 to deposit compensation Crl.R.P.No.2805/2009 4 Resultantly, this revision petition is disposed of to the following extent: i. While retaining substantive sentence as modified by the appellate court, petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.1,17,500/- (Rupees One lakh seventeen thousand and five hundred only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 15.12.2009 failing which petitioner has to undergo simple imprisonment for three months. ii. Petitioner shall appear in the trial court on 17.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks