IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 2825 of 2009() ------------------------------ CRA.312/2007 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.1321/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- K.T.BABY, S/O. LATE THOMAS, INDIKATTIL HOUSE, VAKAYAR.P.O. MANGARAM MURI KONNI VILLAGE. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/RESPONDENTS: ----------------------------- 1. ALEX.GEORGE S/O. GEORGE MANGALATHU PUTHEN VEEDU, CHENEERKARA.P.O. KULANADA (VIA) PATHANAMTHITTA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. Public Prosecutor : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON 28/08/2009 PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2825 of 2009 --------------------------------------- Dated this 28th 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 him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial First Class Magistrate-2, Pathanamthitta in S.T.No.1321 of 2006 for offence punishable under section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.80,000/- from him on 06-04-2006 and for repayment of that amount issued cheque dated 05-06-2006. That cheque was dishonoured for insufficiency of funds as seen from Ext.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1. Contention of petitioner is that he had no transaction with respondent No.1 and that the cheque was not given to him. Petitioner however did not explain in what other manner the signed cheque leaf happened to be in the custody of respondent No.1. Courts below did not accept the contention of petitioner. 3. It is not disputed that Ext.P1 is the cheque signed and drawn by the petitioner on his account. Though he contended that he had no transaction with respondent No.1, nor issued the cheque to him Crl.R.P.No.2825 of 2009 2 he did not explain how else the cheque happened to be in the custody of respondent No.1. He did not also reply to the statutory notice served on him. Courts below in the circumstances rightly found in favour of due execution of the cheque. No interference is required. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay Rs.80,000/- by way of compensation to respondent No.1 and in default of payment, to undergo simple imprisonment for one month. Learned counsel submits that sentence awarded to the petitioner is excessive. He also sought four months' time to deposit compensation. Learned counsel says that petitioner is a retired school teacher and is unable to raise the entire amount immediately on account of financial difficulties. Considering the circumstances stated by learned counsel and the amount involved I am inclined to grant time till 28-12-2009 to deposit compensation. Considering the nature of offence substantive sentence can be modified as simple imprisonment till rising of the court. There is however no reason to interfere with the compensation awarded. But, since the substantive sentence is being modified and considering the amount involved I direct that in case of non payment of compensation petitioner has to undergo simple imprisonment for three months. Resultantly this revision petition is allowed in part to the Crl.R.P.No.2825 of 2009 3 following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 28-12-2009 to deposit compensation in the trial court as ordered by that court. In case of failure petitioner has to undergo simple imprisonment for three months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 compensation within the period aforesaid. 4. Petitioner shall appear in the trial court on 30-12-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 30-12-2009. THOMAS P JOSEPH, JUDGE Sbna/