IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2024 of 2009() ------------------------------ CRA.372/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.359/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- MURALEEDHARAN NAIR, AGED 45 YEARS, S/O.NARAYANAN NAIR, CHENCHERILKIZHAKKATHIL PUTHENVEEDU, MANNARASALA P.O., THULAMPARAMBU VADAKKUM MURI, HARIPAD. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S)/RESPONDENTS/ COMPLAINANT AND STATE ------------------------------------ 1. ANAND J.PANICKER, S/O.MADHAVAN PILLAI, MOODATHU HOUSE, PILAPPUZHA MURI, HARIPAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 SRI.SIBY MATHEW FOR R 1 SRI.PHILIP J.VETTICKATTU FOR R1 SRI.B.PREMNATH (E) FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2024 of 2009 -------------------------------------- Dated this the 29th day of July, 2009. ORDER Heard counsel for petitioner, respondent No.1 and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge-I, Mavelikkara in Crl.Appeal No.372 of 2007 arising from judgment of Judicial First Class Magistrate-I, Harippad in S.T.No.359 of 2006. Learned Additional Sessions Judge confirmed conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner borrowed Rs.1,50,000/- from him and for repayment of that amount issued Ext.P1, cheque. That cheque was dishonoured for insufficiency of funds as proved by Ext. P2. Issue and service of statutory notice on petitioner are proved by Exts.P3 to P5. Respondent No.1 gave evidence as PW1 and spoke to his case. Petitioner claimed that he had borrowed Rs.50,000/- from respondent No. in the year, 1999 and as security given signed blank cheque. Apart from that, respondent No.1 also took his title deed as security. Later, respondent No.1 wanted him to issue another cheque and accordingly on 12.1.2001 he issued a cheque for Rs.55,000/-. Then again respondent No.1 wanted a fresh cheque to be issued and obliging that demand, petitioner issued Crl.R.P.No.2024/2009 2 four other signed blank cheques. He claimed that he has discharged the liability but the cheques were not returned and one of it was misused. Petitioner gave evidence as DW1 in that line. So far as respondent No.1 is concerned, it is stated in his evidence as PW1 that petitioner issued the cheque in his favour for discharge of a liability to the tune of Rs.1,50,000/-. But he admitted that the signature and writings in that are different. He denied the suggestion that he filled up the cheque. It is true that petitioner has a different case regarding the transaction and as to how else the cheque happened to be in the custody of respondent No.1. But it is seen that inspite of service of statutory notice petitioner did not reply. If petitioner has a genuine contention regarding the transaction and execution of the cheque he, in the normal course would have replied to the statutory notice in that way. He has no acceptable explanation why he did not send reply to the statutory notice. Courts below were not inclined to accept the version of petitioner as DW1 in the circumstances stated above. The finding that petitioner issued the cheque for discharge of a legally enforceable debt/liability rested on a proper appreciation of evidence which required no interference. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months. There was a direction for payment of compensation of Rs.1,50,000/-. A default sentence of imprisonment for four months was provided. Appellate court confirmed conviction, sentence, direction Crl.R.P.No.2024/2009 3 for payment of compensation and default sentence. It is requested that petitioner may be permitted to pay compensation directly to respondent No.1. The further request is that since petitioner on account of financial difficulties is unable to raise the amount immediately, he may be granted six months’ time to deposit/pay compensation. Request for six months’ time is objected by counsel for respondent No.1. 4. Having regard to the nature of offence, I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with the direction for payment of compensation or default sentence. Considering the circumstances stated by learned counsel, I am inclined to grant time to the petitioner till 30.12.2009 to deposit/pay 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. Petitioner is granted time till 30.12.2009 to deposit the compensation failing which petitioner has to undergo simple imprisonment for four months as ordered by the trial court. iii. It is made clear that it will be sufficient compliance of the direction for payment of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed Crl.R.P.No.2024/2009 4 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 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks