IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2336 of 2009() ------------------------------ CRA.307/2006 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), KASARAGODE CC.696/2003 of JUDICIAL FIRST CLASS MAGISTRATE COURT II, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MAMUNI KUNHIKANNAN, AGED 61 YEARS,S/O.KUNHAMBU, PALICHAN ROAD,P.O.THAIKADAPURAM, (VIA) NILESHWARAM,KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.PRADEEP, AGED 36 YEARS,S/O.KUNHIRAMAN, KADINHIMOOLA,P.O.THAIKADAPURAM, (VIA) NILESHWARAM,KASARGODE DISTRICT. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2336 of 2009 -------------------------------------- Dated this the 23rd 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. Public Prosecutor takes notice for respondent No.2. 2. Judgment of learned Additional Sessions Judge (Adhoc-III), Kasaragod in Cr.Appeal No.307 of 2006 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) is under challenge in this revision. According to respondent No.1, petitioner borrowed Rs.45,000/- from him and for repayment of that amount issued Ext.P1, cheque dated 28.4.2003. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5. Ext.P6 is the reply sent by petitioner. Respondent No.1 gave evidence as PW1. Respondent No.1 was not cross examined. Later, on 19.5.2006 there was an application from petitioner under Section 311 of the Code of Criminal Procedure to recall respondent No.1 for cross examination. Same day that application was allowed on condition of payment of Rs.300/- by way of cost within seven days. Cost was not paid and hence the application was dismissed. Learned magistrate has found from the evidence that due execution of the cheque is proved. Apart from Crl.R.P.No.2336/2009 2 the fact that evidence of respondent No.1 was not challenged in cross examination there is Ext.P6, reply sent by the petitioner wherein he has admitted the transaction and execution of the cheque and request was made for time for repayment of the amount. In the light of the evidence on record courts below correctly held that petitioner issued the cheque for discharge of a legally enforceable debt/liability. On going through the judgments under challenge and hearing learned counsel I do not find reason to interfere with that finding. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.45,000/- to respondent No.1. A default sentence of imprisonment for two months was provided. Appellate court did not interfere with the sentence. Learned counsel contended that sentence imposed is excessive. 4. Having regard to the amount involved and object of legislation, I am inclined to think that substantive sentence can be modified as simple imprisonment till rising of the court . There is however no reason to interfere with the direction for payment of compensation as well as default sentence at the instance of petitioner. 5. It is submitted by learned counsel that petitioner is unable to raise Crl.R.P.No.2336/2009 3 the amount immediately on account of financial difficulties and requested one years' time to deposit compensation. Transaction is of April, 2003 and even in Ext.P6, reply petitioner asked for only six months' time which has already expired. Hence the request for one year's time cannot be allowed. However, considering the circumstances in which petitioner is placed as stated by learned counsel I am inclined to grant three months' time to the petitioner to deposit compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence imposed on petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time from this day to deposit compensation in the trial court as ordered by that court. In case of non-deposit/payment petitioner has to undergo simple imprisonment for three months. iii. 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 Crl.R.P.No.2336/2009 4 the compensation within the above said time. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks