IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.REV.PET.NO. 2698 OF 2009() ------------------------------------------- CRA.160/2002 OF ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY STC.1177/1997 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED --------------------------------------------------------------------- P.M.KURIAKOSE, S/O MICHAL,FOAM LAND, KANNOTHUMCHAL,RESIDING AT KOOVAKANDY HOUSE, OPP.AMRIT VIDYALAYA,KAKKAD, KANNUR. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENT(S): RESPONDENTS/ COMPLAINANT & STATE ------------------------------------------------------------------------------- 1. K.ANANDAN,AISARYA,PAYYAMBALAM, KANNUR.15. 2. STATE OF KERALA REP.BY P.PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. PREMA, W/O, ANANDAN, DEVADOOT HOUSE, CHOMBALA P.O. (VIA) VADAKARA. 4. BEENA, D/O. ANANDAN, DO. DO. DO. 5. PONNI, DO. DO. DO. DO. 6. BIJU, S/O. ANANDAN, DO. DO. DO. ADDITIONAL RESPONDENTS 3 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED22.6.2009 ON CRL. M.A. NO.728 OF 2009 BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2698 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of August, 2009 O R D E R -------------- Notice to additional respondent Nos.3 to 6 is dispensed with in view of the order I am proposing to pass which is not prejudicial to them. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), Thalassery in Crl. Appeal No.160 of 2002 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. Respondent No.1, complainant died pending this revision. Thereon his legal representatives were impleaded as additional respondent Nos.3 to 6. Case is that petitioner borrowed Rs.1,65,000/- and for repayment of that amount issued Ext.P1, cheque dated 1.9.1997 in favour of respondent No.1. Dishonour of that cheque as payment was stopped is proved by Exts.P2, P3 and P7. Service of notice on the petitioner is proved by Exts.P4 to P6. Deceased respondent No.1 (complainant) gave evidence as P.W.1 and testified to his case. Contention of petitioner is that he had given cheque to one Murali and that has been misused. Courts below did not accept that contention and found petitioner guilty. That finding is under challenge in this CRL. R.P. No.2698 of 2009 -: 2 :- revision. 3. So far as execution of the cheque is concerned deceased respondent No.1 has given evidence as P.W.1. It is not disputed by petitioner that Ext.P1 is signed and drawn on the account maintained by him, his contention being that he had given a signed blank cheque to Murali but there is no evidence or circumstance to hold so. Respondent No.1 denied that he had any relationship with Murali and he filled and presented the cheque. Respondent No.1 stated that he advanced amount to the petitioner at his house bearing door No.271. In cross-examination he sated that he is staying in the house by name “Aiswarya” bearing door No.271. Petitioner examined D.Ws.1 and 2 and proved Exts.D1 and D2. D.W.1 claimed that he is residing in the house by name “Brunai House”. D.W.2 is the L.D. Clerk in the Municipal Office, Kannur. He was authorised to give evidence by his superior officer as per Ext.D2. Exhibit D1 is proved through D.Ws.1 and 2. Exhibit D1 is related to door No.271 which is a Car Shed. That evidence is adduced to show the version of respondent No.1 that he advanced amount to the petitioner at his residence which bears house door No.271 is not correct. But merely based on that discrepancy evidence of deceased respondent No.1 cannot be rejected. The maximum that can be stated is that house number (door No.271) of CRL. R.P. No.2698 of 2009 -: 3 :- respondent No.1 is not correct. Discrepancy in the door number did not affect the evidence of deceased respondent No.1. Petitioner was not successful in proving or probabilising his contention. 4. Deceased respondent No.1 adduced Exts.P4 to P6 to show that statutory notice was served on petitioner. On going through the judgments under challenge and hearing counsel I find no reason to interfere with the conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.5,000/- to respondent No.1. Default sentence of imprisonment for one month was also provided. Appellate court did not interfere with the substantive sentence and default sentence but converted compensation as fine. It is contended by learned counsel that the sentence awarded is excessive. Counsel requested for leniency in the matter of sentence. 6. In the nature of the offence proved to be committed by petitioner I am not inclined to think that a deterrent punishment is needed. It is sufficient in the ends of justice to direct the petitioner to undergo simple imprisonment till rising of the court. 7. At the same time loss caused to deceased respondent No.1 on account of dishonour of the cheque has to be compensated. CRL. R.P. No.2698 of 2009 -: 4 :- Deceased respondent No.1 and in his absence additional respondent Nos.3 to 6 are to be compensated for the loss. Section 357(4) of the Code of Criminal Procedure empowers the revisional court to award compensation. Conviction under Sec.138 of the Act should normally be followed by payment of compensation. There is no reason why such a course should not be adopted in this case. So petitioner shall pay compensation to additional respondent Nos.3 to 6 which considering the amount involved I fix it as Rs.1,65,000/-. 8. Learned counsel requested six months’ time to deposit the compensation. It is stated that petitioner is not able raise the amount immediately. It is also requested that petitioner may be permitted to pay the compensation directly to additional respondent Nos.3 to 6. Considering the circumstances stated by learned counsel petitioner is granted time till 11.1.2010 to deposit the compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Sentence of fine is set aside and CRL. R.P. No.2698 of 2009 -: 5 :- instead petitioner is directed to deposit Rs.1,65,000/- (Rupees One lakh and sixty five thousand only) as compensation in the trail court for payment to additional respondent Nos.3 to 6 under Sec.357(3) of the Code on or before 11.1.2010 failing which petitioner shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to additional respondent Nos.3 to 6 through his counsel in the trial court and additional respondent Nos.3 to 6 filed a statement in the trial court through their counsel acknowledging receipt of compensation within the said period. Petitioner shall appear in the trial court on 12.1.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv