IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 2397 of 2009 ------------------------------ CRA.9/2008 of SESSIONS COURT, KOTTAYAM ST.242/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- BABURAJ, MALAKKULATHIL (VAZHAPPALLIL), PULICKAL KAVALA, VAZHOOR, KOTTAYAM. BY ADV. SRI.N.P.SETHU RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE: -------------------------- 1. P.K.ABDUL SATHAR, PATHIPPALATHU, KANAM P.O., KANGAZHA, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR.: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2397 of 2009 --------------------------------------- Dated this 29th day of July 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. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in criminal appeal No.9 of 2008 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner owed Rs.1,10,000/- to him and for repayment of that amount issued Ext.P1, cheque. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. According to the petitioner he had no transaction with respondent No.1 and instead, signed blank cheque was given as a security to another person in a timber transaction was misused. It is contended that the conviction of petitioner is not legal or proper. 3. So far as execution of the cheque is concerned what is available is only evidence of respondent No.1 as PW1. He has stated that petitioner borrowed the amount from him and issued the cheque. The suggestion of petitioner was denied by him. There is no evidence Crl.R.P.No.2397 of 2009 2 or circumstances to hold that the cheque leaf happened to be in the custody of respondent No.1 in the circumstances stated by petitioner. He did not also reply to the statutory notice served on him. I do not find reason to interfere with conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay Rs.1,10,000/- as compensation and in default of payment to undergo simple imprisonment for one month. Learned counsel submitted that sentence imposed is excessive and that petitioner is undergoing imprisonment in Central Prison, Viyyur from 23-07-09 onwards. He prayed that petitioner may be granted six months' time to pay the compensation. 4. Having regard to the nature of offence and the amount involved and the imprisonment already undergone, I am satisfied that substantive sentence can be confined and limited to the period of sentence already undergone. Considering the circumstances stated by learned counsel petitioner is granted time till 30-12-2009 to deposit compensation. In case of failure petitioner has to undergo simple imprisonment for two months. Resultantly this revision is allowed in part to the following extent: (1) Substantive sentence awarded to the petitioner is modified and limited to the period of imprisonment already undergone by him. Crl.R.P.No.2397 of 2009 3 (2) Petitioner is granted time till 30-12-2009 to deposit compensation in the trial court in case of failure he shall undergo simple imprisonment for two 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 the amount within the aforesaid period of three months. (4) In case of non deposit/payment of compensation as aforesaid. Petitioner shall appear on trial court on 31-12-2009 to suffer the default sentence. Petitioner shall be released from the jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Central Prison, Viyyur to that effect. THOMAS P JOSEPH, JUDGE Sbna/