IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 Crl.Rev.Pet.No. 1855 of 2009() ------------------------------------- CRA.1/2005 of II ADDL.SESSIONS COURT, KOLLAM DTD 23.10.2007 AGAINST CC.146/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- G RAMACHANDRAN NAIR, S/O. GOVINDAN NAIR, KOTTAKKATTU VEEDU, THRIKANAMANGAL MURI, KOTTARAKKARA VILLAGE. BY ADV. MR.PREMCHAND R.NAIR RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------------------- 1. C. VARGHESE, CHARUVILA VEEDU, IPALLOOR MURI, MELILA VILLAGE, KOTTARAKKARA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1855 OF 2009 ---------------------------------------- Dated this the 12th day of June, 2009 ORDER This revision is in challenge of judgment of learned IInd Additional Sessions Judge, Kollam in Criminal Appeal No.1 of 2005 confirming conviction and sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). A complaint was preferred by respondent No.1 alleging that petitioner borrowed Rs.75,000/- from him and for its re-payment, petitioner issued Exts.P1 and P2, cheques dated 31.7.2000 for Rs.60,000/- and Rs.15,000/- respectively. Respondent No.1 presented those cheques for encashment but the same were dishonoured for insufficiency of funds as proved by Exts.P3 and P4. Respondent No.1 issued notice to the petitioner intimating him about dishonour and demanding payment of the amount. Notice was served. Issue and service of notice are proved by Exts.P5 and P6. There is no challenge to the finding of the courts below regarding cause of dishonour of Exts.P1 and P2 and issue and service of statutory Crl.R.P.No.1855/09 2 notice on the petitioner. Challenge is only to the finding regarding execution of Exts.P1 and P2, cheques. 2. Respondent No.1 gave evidence as PW1 and stated that he is acquainted with petitioner and used to go to the ration shop run by the petitioner and while so, in October 1998, petitioner borrowed the amount from him in connection with the marriage of his daughter, undertaking that the amount will be re-paid soon. On his demanding re-payment petitioner issued Exts.P1 and P2. Case pleaded by the petitioner is that he had no transaction with respondent No.1 and instead, had given Exts.P1 and P2 to one Ramachandran Pillai who was working as Peon in the Indian Bank. It was also contended in the courts below that Exts.P1 and P2 are invalid on account of material alteration in that, the year of the cheques have been altered by respondent No.1 without the knowledge or authority of petitioner. 3. So far as execution of the cheques is concerned, it is not disputed by petitioner that Exts.P1 and P2 contained his signature and that those cheques are drawn on his account. His case that he had given the cheques to Ramachandran Pillai in the circumstances pleaded by him is not proved or even Crl.R.P.No.1855/09 3 probabilised. Nothing is brought out to disbelieve the evidence of respondent No.1 regarding the transaction which culminated in Exts.P1 and P2. Petitioner did not adduce any evidence in support of his contention. Nor did he reply to the statutory notice served on him which stated that he borrowed Rs.75,000/- from respondent No.1 and issued the cheques for repayment of that amount. In these circumstances I do not find reason to interfere with the concurrent finding entered by the courts below that petitioner issued the cheques for the discharge of a legally enforceable debt/liability. 4. So far as contention regarding alleged material alternation is concerned, learned magistrate has observed and that is not disputed before me that at the portion where the year is corrected there is proper authentication by the petitioner by putting his full signature. That signature also is not disputed by the petitioner. Hence petitioner cannot contend that the cheques are materially altered without his consent or authority. On going through the judgments under challenge I do not find reason to interfere with conviction of the petitioner. 5. Learned magistrate sentenced the petitioner to Crl.R.P.No.1855/09 4 undergo Simple Imprisonment for four months and directed him to pay Rs.75,000/- (Rupees seventy five thousand only) to respondent No.1 as compensation. Default sentence of six months was also provided. Appellate Court did not interfere with the sentence. Learned counsel submits that substantive sentence awarded to the petitioner is excessive and requested for leniency. He also requested for six months' time to deposit compensation in the trial court. 6. Having regard to the nature of offence proved against petitioner and the object of legislation, I am inclined to think that Simple Imprisonment till rising of the court is sufficient in the ends of justice. However, there is no reason to interfere with the direction issued by learned magistrate, as confirmed by the appellate court, for payment of compensation and the default sentence provided. Considering the circumstances stated by learned counsel and the amount involved, petitioner is granted three months' time to deposit compensation in the trial court. 7. I have dispensed with notice to respondent No.1 in view of the order I proposed to pass which is not prejudicial to him. Crl.R.P.No.1855/09 5 Resultantly, this revision is allowed in part to the following extent: i) Substantive sentence awarded to the petitioner is modified as Simple Imprisonment till rising of the court. ii) Petitioner is granted three months' time from today to deposit compensation in the trial court. In case of failure he shall undergo imprisonment as ordered by learned magistrate. iii) It is made clear that it will be sufficient compliance with the direction for payment to 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 aforesaid time. iv) Petitioner shall appear in the trial court on 15.9.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1855/09 6