IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 1612 of 2009() ------------------------------ CRA.259/2007 of I ADDL.SESSIONS COURT, KOZHIKODE ST.199/2006 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.T.RAVEENDRAN, AGED 55 YEARS, S/O.MADHAVAN, L.E.QUARTERS 54, NEAR DOOR DARSAN KENDRA, P.O.MEDICAL COLLEGE, KOZHIKODE-8. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. SASIDHARAN, S/O.KUNHANDI, KOTTICHIKADU THODI, P.O.KOTTOOLI, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 ADV. SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1612 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Respondent No.1 appears through Advocate V.N.Ramesan Nambeesan. Public Prosecutor takes notice for respondent No.2 2. Heard both sides.. 3. Judgment of learned I Additional Sessions Judge, Kozhikode in Crl.Appeal No.250 of 2007 is under challenge in this revision. Respondent No.1 filed a complaint against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 4. Case of respondent No.1 is that for discharge of debt to the tune of Rs.40,000/- due to him petitioner issued Ext.P1, cheque dated 15.10.2005 which was dishonoured for insufficiency of funds and inspite of dishonour intimation and demand for payment petitioner did not pay the amount. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P3 series. Dishonour of the cheque for the said reason is proved by Ext.P2. According to respondent No.1, he issued notice to the petitioner on 4.11.2005 intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Ext.P3 series. Contention of petitioner is that he had borrowed Rs.10,000/- from respondent No.1 through one Shaji and as security gave a cheque in signed blank form. Later he repaid Rs.10,000/- but respondent No.1 Crl.R.P.No.1612/2009 2 did not return the cheque. Petitioner gave evidence as DW1. Learned magistrate was not impressed by the evidence of DW1(petitioner) accepted the evidence of PW1(respondent No.1) and found petitioner guilty of offence punishable under Section 138 of the Act. Appellate court concurred with that finding. It is contended by learned counsel that in the light of the evidence given by DW1, finding of the courts below is erroneous and at any rate the presumption under Section 139 of the Act has been rebutted. Learned counsel for respondent No.1 contended that there is no illegality, irregularity or impropriety in the finding entered by the courts below requiring interference by this Court. The function of the revisional court is to ascertain whether there is any illegality, irregularity or impropriety in the findings and proceedings of the courts below. That, Ext.P1 contains the signature of the petitioner is admitted by him and proved also. Petitioner did not examine said Shaji. He would have been competent to give evidence regarding petitioner’s case. Learned magistrate observed that it is difficult to think that inspite of paying Rs.10,000/- as against the loan petitioner did not take back the cheque which was in signed blank form. It is also pertinent to note that there is no reply to the notice served on the petitioner. Courts below have considered these facts and found that petitioner executed the cheque for discharge of the liability as pleaded by respondent No.1 and that petitioner failed to rebut the presumption under Section 139 of the Act. There is nothing illegal, irregular or improper in the finding entered by the courts below in that regard. 5. Learned magistrate sentenced petitioner to undergo simple Crl.R.P.No.1612/2009 3 imprisonment for two months and directed him to pay Rs.40,000/- as compensation under Section 357(3) of the Code of Criminal Procedure and in default to undergo imprisonment for one month. In appeal learned Additional Sessions Judge modified the substantive sentence to simple imprisonment till rising of the court and compensation awarded was converted as fine of Rs.40,000/- granting three months time to the petitioner to deposit that amount. Learned counsel for petitioner submits that fine may be modified as compensation as awarded by the trial court permitting the petitioner to pay the amount directly to respondent No.1. In that facts and circumstances of the case, I am inclined to accept that request. Petitioner is granted two months’ time to deposit compensation in the trial court. Resultantly, this revision is allowed in part in the following lines:and the sentence is modified as follows: i. Sentence of fine is converted as compensation. Petitioner is directed to deposit Rs.40,000/- (Rupees forty thousand only) as compensation payable to respondent No.1, in the trial court within two months from this day failing which, he shall undergo simple imprisonment for one month. ii. It is made clear that it will be sufficient compliance with direction No.i 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 compensation within the aforesaid time. Crl.R.P.No.1612/2009 4 iii. Petitioner shall appear in the trial court on 28.7.2009 to receive the sentence. Crl.M.A.No.4890 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks