IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 2598 of 2009() ------------------------------ CRA.287/2007 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.449/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SUNIL KUMAR.V.K,S/O.M.K.KRISHNAN KUTTY, MADATHARA(H),MANARCADU.P.O,KOTTAYAM. BY ADV. SRI.JOSE JOSEPH (MANNAR) RESPONDENT(S)/RESPONDENTS/ COMPLAINANT -------------------------- 1. SUNI.M.P,S/O.PAVITHRAN,PUNNATHAZHA(H), CHENGALAM SOUTH.P.O,CHENGALAM VILLAGE,KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHIR JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2598 of 2009 -------------------------------------- Dated this the 12th day of August, 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. This revision is in challenge of judgment of learned Additional Sessions Judge(Adhoc)-II, Kottayam in Crl.Appeal No.287 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Case is that petitioner owed Rs.42,000/- to respondent No.1 and on the letter demanding repayment petitioner issued Ext.P1, cheque dated 26.10.2004 for the said amount. 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. Respondent No.1 gave evidence as PW1 and spoke to his case. According to the petitioner, he had borrowed only Rs.10,000/- from respondent No.1 and issued signed blank cheque. He has already repaid the amount with interest but the signed blank cheque retained by respondent No.1 has been misused. Petitioner examined DW1 in proof of that. DW1 claimed that respondent No.1 used to visit the place of his business and he witnessed petitioner borrowing Rs.10,000/- from respondent No.1 and giving signed blank cheque. Courts Crl.R.P.No.2598/2009 2 below did not accept that evidence of DW1 and found petitioner guilty. That finding is under challenge in this revision. 3. It is true that petitioner has a different version as to how the cheque happened to be in the custody of respondent No.1, but apart from examining DW1 no evidence is produced to show that only Rs.10,000/- was borrowed or that any amount has been repaid to respondent No.1. Petitioner has also not replied to the statutory notice served on him. Nothing is brought out to disbelieve the evidence of respondent No.1. In these circumstances courts below are justified in accepting the evidence of respondent No.1 and finding petitioner guilty. I find no reason to interfere with that finding. 4. Substantive sentence awarded by learned Chief Judicial Magistrate is modified by the appellate court as simple imprisonment till rising of the court. Learned Chief Judicial Magistrate directed payment of compensation of Rs.42,000/- and a default sentence of imprisonment for one month was provided. That has been converted by the appellate court as fine of Rs.42,000/- while default sentence is retained. Learned counsel requested that the fine may be converted as compensation payable to respondent No.1 directly and requested for two months' time to deposit compensation. Learned counsel states that petitioner is unable to raise the amount immediately on account of financial difficulties. Considering the nature of offence and the circumstances stated by learned counsel I am inclined to allow the request. Resultantly, this revision petition is allowed in part to the following extent: i. While retaining the substantive sentence as modified by the Crl.R.P.No.2598/2009 3 appellate court, sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.42,000/- (Rupees Fortytwo thousand only) by way of compensation on or before 12.10.2009 failing which petitioner shall undergo simple imprisonment for one month. ii. 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 the compensation within the above said time. Petitioner shall appear in the trial court on 13.10.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks