IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2806 of 2009() ------------------------------ CRA.199/2007 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM ST.530/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.K.PRASAD, S/O.KUTTAPPAN, AGED 44 YEARS, KATTACHIRAYIL HOUSE, THIRUVARPPU P.O., KOTTAYAM. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.K.S.SALEESH RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.B.KOMALAN, KULANGARA HOUSE, KANJIRAM P.O., THIRUVARPU, KOTTAYAM. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2806 of 2009 -------------------------------------- Dated this the 27th 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. Concurrent finding entered by the courts below regarding due execution of a cheque for the discharge of a legally enforceable debt/liability is under challenge in this revision. Petitioner faced trial in the court learned Chief Judicial Magistrate, Kottayam in S.T.No.530 of 2005 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner issued Ext.P1, cheque dated 4.11.2004 for Rs.50,000/- for payment of the amount due to respondent No.1. That cheque was dishonoured for insufficiency of funds as proved by Exts. P2, P3 and P7. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and stated to his case. Petitioner denied that there was any such transaction between him and respondent No.1. Courts below found in favour of due execution of the cheque. That finding is under challenge. 3. It is not disputed that Ext.P1 is signed by petitioner and is drawn on the account maintained by him. He has not explained properly in what other Crl.R.P.No.2806/2009 2 way the cheque happened to be in the custody of respondent No.1. On the other hand respondent No.1 has given evidence regarding the transaction and execution of cheque. It is to be borne-in-mind that petitioner did not reply to the statutory notice served on him. Courts below considered the relevant circumstances, accepted evidence of respondent No.1 and found in favour of due execution of the cheque. On hearing learned counsel and going through the judgments under challenge I find no reason to interfere with the findings entered by the courts below and the consequent conviction of petitioner. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.50,000/-. to respondent No.1. A default sentence of imprisonment for one month was provided. Appellate court did not interfere with the sentence. It is contended that sentence imposed is excessive. 5. Considering the nature of offence and object of legislation I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation at the instance of petitioner. Since substantive sentence is modified and considering the amount involved, I direct that in case of non- payment of compensation, petitioner has to undergo simple imprisonment for three months. Crl.R.P.No.2806/2009 3 6. Learned counsel requested that petitioner may be granted six months’ time to deposit compensation. Learned counsel stated that on account of financial difficulties petitioner is unable to raise the amount immediately. It is also requested that petitioner may be permitted to pay compensation directly to respondent No.1. Having regard to the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 21.1.2010 to deposit/pay 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. Petitioner is granted time till 21.1.2010 to deposit compensation in the trial court as ordered by that court and confirmed by the appellate court. In case of failure 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 compensation within the above said period. Petitioner shall appear in the trial court on 23.1.2010 to receive the Crl.R.P.No.2806/2009 4 sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks