IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 2230 of 2009() ------------------------------------------ CRA.324/2007 of ADDL. SESSION JUDGE(ADHOC-II), KASARAGOD CC.325/2006 of OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD .................... REVN. PETITIONER/ APPELLANT/ACCUSED: ----------------------------------------------------------- K.Z.ABOOBACKER, AGED 55 YEARS, S/O.SAINUDEEN, BALANADKAM HOUSE, P.O.CHENGALA, KASARGODE. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------- 1. SHAMSUDDEEN P.O., AGED 30 YEARS, S/O.ABDULLA, S.A.HOUSE, PERUMBALA ROAD, NAYANMAMOOLA, KASARGODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI. C.S. HRITHWICK, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2230 of 2009 ORDER ON CRLM.A NO.6738/2009 IN CRL.R. P. NO.2230/2009 DISMISSED SD/- 10/07/2009 THOMAS P. JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/- THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2230 of 2009 --------------------------------------- Dated this 10th 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 the public prosecutor who took notice for respondent No.2. 2. Concurrent finding entered by the courts below regarding execution of a cheque for discharge of legally enforceable debt/liability is attempted to be unsettled in this revision. Petitioner faced trail in the court of learned Judicial First Class Magistrate, Kasargode in C.C.No.325 of 2006 for offence punishable under Sec.138 of the Negotiable Instruments Act (for short, “the Act”). That case was initiated on a complaint preferred by respondent No.1 alleging that petitioner borrowed Rs.85,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 10-12-05. Dishonour of that cheque for insufficiency of funds is proved by Ext.P2. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment. Exts.P3 to P4 are the office copy of notice and the postal receipt. Ext.P5 shows that notice was returned unclaimed. Courts below found that notice was returned inspite of giving intimation to petitioner and that amounted deemed service of notice. 3. Respondent No.1 gave evidence as PW1 and testified to crl.R.P.No.2230 of 2009 2 the transaction. According to petitioner, he had no transaction with respondent No.1. Instead, Basheer brother-in-law of respondent No.1 purchased his jeep and when Basheer was going abroad that jeep was returned to the petitioner. Petitioner was to pay Rs.85000/- to Basheer. In connection with that transaction, Basheer obtained a signed blank cheque from him. That cheque has been misused. Petitioner did not adduce any evidence in that line. Respondent No.1 denied the suggestion to that effect. In the course of evidence respondent No.1 stated that there was an agreement between him and petitioner regarding the transaction which led to the issue of Ext.P1, but that agreement was not produced. Learned magistrate found that non production of the agreement is not fatal since petitioner had not taken steps to summon that agreement and as prosecution is for offence punishable under Sec.138 of the Act pertaining to dishonour of the cheque (Ext.P1). There is no evidence to even probabilise that the cheque was given to Basheer as contended by petitioner. That, notice issued on behalf of respondent No.1 was returned unclaimed inspite of intimation indicates that petitioner was aware of the nature of claim being made on behalf of respondent No.1. Courts below after consideration of the evidence found in favour of due execution of the cheque. I do not find reason to interfere. 4. Learned magistrate sentenced petitioner to undergo simple crl.R.P.No.2230 of 2009 3 imprisonment for six months and payment of compensation of Rs.85000/- . Default sentence of imprisonment for three months was also provided. Appellate court modified the sentence as simple imprisonment till rising of the court and fine of Rs.100000/- with default sentence of imprisonment for three months. It was directed that out of the fine if realized, Rs.95000/- will be paid to respondent No.1 as compensation. It is requested by learned counsel that fine awarded by the appellate court may be converted as compensation payable to respondent No.1 directly. He also requested that petitioner may be granted six months' time to pay compensation. Learned counsel stated that petitioner is placed in a financially difficult situation. 5. Considering the nature of offence and the object of legislation I am inclined to think that instead of fine petitioner need be directed to pay compensation. I am inclined to grant time till 09-12-09 for payment of compensation. In case of nonpayment he has to undergo simple imprisonment for three months. Resultantly this revision is allowed in part to the following extent: (1)Substantive sentence as modified by the appellate court is retained. (2)The sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court Rs.95000/- (Rupees Ninety Five Thousand Only) for payment to respondent No.1 by way of compensation crl.R.P.No.2230 of 2009 4 under Se.357(3) of the Code of Criminal Procedure. Petitioner is granted time till 09-12-2009 to deposit compensation failing which he 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 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 amount within the period aforesaid. Petitioner shall appear in the trial court on 10-12-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/