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. 2790 OF 2009() ------------------------------ CRA.552/2006 OF II ADDL. SESSIONS COURT, TRIVANDRUM ST.119/2006 OF JUDICIAL FIRST CLASS MAGISTRATE-II, VARKALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- SASIDHARAN NAIR, S/O.KUNJUKRISHNA PILLAI KUMBNNIL PUTHEN VEEDU, AYIROOR PO, AYIROOR VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. CHINTHAMANI, W/O.PRABHAKARAN, PRABHA, MUTTAPPALAM, THACHODU, CHEMMARUTHY VILLAGE, THIRUVANANTHAPURAM 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, RAM MOHAN PALACE COMPOUND, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2790 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of August, 2009 O R D E R -------------- Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Varkala in S.T. No.119 of 2006 for offence punishable under Section 138 of the Negotiable Instruments Act. Complaint of respondent No.1 is that she advanced Rs.1,00,000/- to the petitioner on 1.1.2004 by way of loan, latter issued Ext.P1, cheque dated 1.2.2004 for its repayment but the cheque was dishonoured for the reason “not arranged for”. Cause of dishonour is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Petitioner has not replied to the notice. She contended that she had no transaction with respondent No.1 but she does not know in what manner his cheque came to the custody of respondent No.1. Petitioner examined D.W.1, Manager of the bank of respondent No.1. D.W.1 was summoned to produce details of account No.172386. She stated that there is no such account maintained in her bank. It is revealed from Ext.P3, intimation produced from the collecting bank that account number of respondent No.1 is SM/AC 199. After the evidence of D.W.1, petitioner took no steps to summon the details of CRL. R.P. No.2790 of 2009 -: 2 :- that account. Learned magistrate found that contention of petitioner is not proved and held petitioner guilty. Appellate court has confirmed that finding. Concurrent finding is under challenge in this revision. 2. So far as the execution of cheque is concerned, on the one side there is evidence of respondent No.1 regarding the transaction leading to the execution of the cheque. On the other side evidence is nil and contention raised by petitioner is that he does not know in what manner his cheque reached respondent No.1. That explanation did not sound good. It is also relevant to note that petitioner did not reply to the statutory notice served on him. In the circumstances courts below rightly found that there is nothing to disbelieve the evidence of respondent No.1 and held petitioner guilty. I find no reason to differ from that finding. 3. In modification of the sentence and amount of compensation awarded by the learned magistrate, appellate court imposed sentence of simple imprisonment till rising of the court and directed payment of fine of Rs.1,00,000/- to respondent No.1 with default sentence of imprisonment for two months. It was directed that fine if realised will be given to respondent No.1. Learned counsel requested that fine may be converted as compensation payable to CRL. R.P. No.2790 of 2009 -: 3 :- respondent No.1 directly. Further request is to grant six months’ time to deposit compensation. It is stated that on account of financial difficulty petitioner is unable to raise the amount immediately. Having regard to the nature of offence and amount involved, instead of the sentence of fine petitioner could be directed to pay compensation. Considering the circumstances stated by learned counsel I am inclined to grant time till 22.01.2010 to deposit compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to petitioner is modified as simple imprisonment till rising of the court. (ii) Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.1,00,000/- (Rupees One lakh only) by way of compensation under Section 357(3) of the Code of Criminal Procedure for payment to respondent No.1 on or before 21.01.2010 failing which petitioner has to undergo simple imprisonment for three months. CRL. R.P. No.2790 of 2009 -: 4 :- (iii) It is made clear that it shall be sufficient compliance with 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 her counsel acknowledging receipt of compensation within the said period. Petitioner shall appear in the trial court on 21.01.2010 to receive the sentence. Until then execution of warrant if any against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv