IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.Rev.Pet.No. 2062 of 2009() ------------------------------ CRA.709/2007 of SESSIONS COURT, TRIVANDRUM CC.124/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT V, NEYYATTINKARA. (OLD CC.517 /2002) .................... PETITIONER:REVISION PETITIONER(S): ----------------------------------------------------------- KRISHNANKUTTY, EZHAKULATHINKARA PUTHEN VEEDU, KADAVATTARAM, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. MR.G.SUDHEER RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. A.VELAPPAN, VIDHYA BHAVAN, VALIYAVILA, UCHAKKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2062 of 2009 --------------------------------------- Dated this 29th day of June 2009 ORDER Notice to respondent No.1 is dispensed 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. On a private complaint preferred by respondent No.1, petitioner faced trial in the Court of learned Judicial First Class Magistrate-5, Neyyanttinkara in C.C.No.124 of 2005 for the offence punishable under Sec.138 of the Negotiable Instruments Act. According to respondent No.1, petitioner owed Rs.1,00,000/- to him and for repayment of that amount issued Ext.P1, cheque dated 15-02-01. That cheque was dishonoured for insufficiency of funds. Its dishonour is proved by Ext.P2and P2(a). On getting intimation respondent No.1 issued notice to the petitioner on 10-08-01 intimating dishonour and demanding payment of the amount. Notice was returned with the endorsement that it was Crl.R.P.No.2062 of 2009 2 unclaimed. Ext.P3 is the copy of the notice. Ext.P4 is the notice returned as unclaimed. 3. It is not disputed that respondent No.1 has sent notice to the petitioner in his correct address. That notice was sent under registered post in the correct address which reached the addressee. Ext.P4 shows that in spite of intimation given to the petitioner he did not claim it and hence it was returned unclaimed. There is deemed service of notice on petitioner. 4. Respondent No.1 gave evidence as PW1 and stated about the transaction between him and the petitioner leading to execution of the cheque (Ext.P1). In cross examination he stated that transaction and execution of cheque took place at a time when petitioner was working in Uchakkada branch of Neyyattinkara District Co-operative Bank. At another portion of his evidence he stated that he was not sure whether at that time petitioner was working in Uchakkada branch. Petitioner examined DW1, Managing Director of the said bank and proved that from 06-05-97 to 11-01-1999 petitioner was working in Uchakkada branch. In Crl.R.P.No.2062 of 2009 3 other words going by the evidence of DW1 petitioner was not working at Uchakkada branch during 2001 when according to respondent No.1 the transaction took place. Ext.D1 is the statement filed by petitioner when questioned under Sec.313 of Code of Criminal Procedure. Ext.D2 is copy of the service book of petitioner to prove that petitioner was not working in the Uchakkada branch of District Co-operative Bank during the relevant time. 5. I have considered the contention raised by the learned counsel. It is not a case of respondent No.1 claiming that transaction took place at Uchakkada branch of District Co- operative Bank. It is not of any consequence whether petitioner was working in Uchakkada branch of the Bank or not on the relevant day. Hence DW1 and Ext.D2 cannot in any way effect the evidence of respondent No.1 regarding the transaction. Nothing is brought out in the evidence of respondent No.1 to disbelieve him. It is to be borne in mind that though petitioner was given intimation about the registered notice issued on behalf of Crl.R.P.No.2062 of 2009 4 respondent No.1 he did not claim it which indicate that he was aware of the claim being made on behalf of respondent No.1. It is not disputed that Ext.P1 contained signature of petitioner. It is also not disputed that the cheque was drawn on an account maintained by him. According to the petitioner, he had subscribed to a kuri conducted by respondent No.1 and given the cheque as security. He repaid the amount but respondent No.1 demanded further sum of Rs.3000/-. On that contention what is available is only the suggestion made by petitioner to respondent No.1. There is no evidence or circumstances to prove or even probablise the contention raised by the petitioner. In these circumstances, courts below are justified in holding in favour of due execution of cheque. I find no reason to interfere. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. He was directed to pay Rs.1,05,000/- as compensation to respondent No.1 and in case of failure to undergo simple imprisonment for three months. Appellate court modified the sentence as fine of Rs.1,05,000/- and Crl.R.P.No.2062 of 2009 5 in default payment to undergo simple imprisonment for three months. Since Sec.143 of the Act was amended only with effect from 06-02-03. Since commission of offence in this case was prior to that, appellate court could not have imposed fine exceed Rs.5,000/-. To that extent sentence imposed by the appellate court is illegal. 7. In a similar circumstances, a court hearing the appeal against conviction and sentence for payment of fine exceeding Rs.5,000/- modified the sentence as simple imprisonment till rising of the court and a direction for payment of compensation was issued. Question arose whether appellate court could do so on an appeal preferred by the accused against conviction and sentence. Contention was that it amounted to enhancement of the sentence for fine to imprisonment though only till rising of the court. This court considered the issue in Radhakrishnan Vs Padmanabhan (2000(2) KLT-349) and held that it did not amount to enhancement of sentence. Even if it amounted to alteration of sentence this court can exercise power under Sec.401 of the Code Crl.R.P.No.2062 of 2009 6 can alter sentence. Having regard to the nature of offence and amount involved I am satisfied that simple imprisonment till rising of the court and compensation of Rs.1,05,000/- payable to respondent No.1 is sufficient in the ends of justice. Petitioner has to undergo simple imprisonment for three months in case of failure to pay compensation. Learned counsel requested four months' time to deposit compensation in the trial court. Having regard to the amount involved and circumstances stated by the learned counsel, three months' time is granted from today to pay the compensation. Resultantly this revision is allowed in part to the following extent. (i) Sentence awarded by the appellate court is set aside. Instead petitioner is sentenced to undergo simple imprisonment till rising of the court. (ii) Petitioner is also directed to deposit in the trial court for payment to respondent No.1 Rs.1,05,000/- (Rupees One Lakh Five Thousand Only) as compensation within Crl.R.P.No.2062 of 2009 7 three months from this day failing which he shall 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 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 compensation within the aforesaid period of three months. Petitioner shall appear in the trial court on 01-10-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/