IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.REV.PET.NO. 2358 OF 2009() ------------------------------------------- CRA.679/2007 OF ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1137/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- KUTTY MOOSA, S/O.KUNJI MOHAMMED, PROPRIETOR, MARITIME BUSINESS ASSOCIATIES THAIKKOTATHIL, VADUTHALA, NADUVATH NAGAR, ALAPPUZHA DIST. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------------------------------- 1. JYOTHI @JYOTHI PRASIN, S/O.SIDHARTHAN, VALIPARAMBIL HOUSE, PO.KARAYAVATTOM, VALAPPAD, CHAVAKKAD TALUK, THRISSUR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2358 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of July, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass which is not prejudicial to him. Public Prosecutor took notice for respondent No.2. 2. Against concurrent finding regarding due execution of a cheque for the discharge of a legally enforceable debt/liability petitioner has come up in revision. He faced trial in the court of learned Judicial First Class Magistrate-I, Kodungallur for offence punishable under Section 138 of the Negotiable Instruments Act, was convicted and sentenced to undergo simple imprisonment for one year. He was also directed to pay compensation of Rs.1,25,000/- and in default of payment to undergo simple imprisonment for three months. In appeal (Crl. Appeal No.679 of 207) learned Additional Sessions Judge, Fast Track (Adhoc-II) confirmed the conviction but modified the sentence as simple imprisonment till rising of the court. Direction for payment of compensation and default sentence were confirmed. It is contended by learned counsel that conviction of petitioner is not legal and proper. CRL. R.P. No.2358 of 2009 -: 2 :- 3. According to respondent No.1, petitioner borrowed Rs.2,00,000/- from him and issued two cheques dated 15.5.2005 and 15.6.2005 for Rs.1,00,000/- each. Exhibit P1 is the cheque dated 15.6.2005. Its dishonour for insufficiency of funds is proved by Exts.P2 and P3. Service of notice on petitioner is proved by Exts.P4 to P6. Exhibit P7 is the copy of reply. Respondent No.1 gave evidence as P..W1. He produced Ext.P8, copy of judgment in C.C.No. 885 of 2005 concerning cheque dated 15.5.2005. Petitioner claimed that respondent No.1 was an employee of his and was dismissed from service for financial irregularity. Petitioner suffered loss of Rs.1,09,000/- on account of that. He borrowed Rs.1,00,000/- and issued two cheques. To prove that the said amount was repaid he produced Ext.D1, voucher allegedly issued by respondent No.1 and examined D.W.1 D.W.1 supported petitioner. Learned magistrate observed that execution of Ext.D1 is not proved and that it does not refer to the cheque in question. It was also observed that date, amount and number of the cheque are corrected in Ext.D1. Therefore no reliance was placed on Ext.D1. 4. Learned counsel submits that since Ext.D1 was denied by respondent No.1 there was a request to send Ext.D1 for expert opinion but that was rejected by learned magistrate as not being relevant. According to the learned counsel rejection of the prayer is not justified. CRL. R.P. No.2358 of 2009 -: 3 :- 5. It is not argued before me that Ext.D1 refers to Ext.P1, cheque dated 15.6.2005. Even as per the statement what is referred to in Ext.D1 is the cheque dated 15.5.2005 which is not the subject matter of this case. As per the version of respondent No.1 for repayment of the sum of Rs.2,00,000/- two cheques for Rs.1,00,000/- each was issued to him, Ext.P1 being one among them. Therefore the statement in Ext.D1 regarding payment of Rs.1,00,000/- to respondent No.1 particularly as it does not pertain to the cheque in question will not in any way improve the defence set up by the petitioner. Viewed in that line I find no reason to interfere with the order of learned magistrate refusing to send Ext.D1 for expert opinion. So far as evidence of D.W.1 is concerned what he stated in his evidence is not supported by any acceptable material. In these circumstances courts below accepted the case of respondent No.1 and held in favour of due execution of the cheque. I find no reason to interfere with that finding. 6. Appellate court has modified the substantive sentence as simple imprisonment till rising of the court while retaining the direction for payment of compensation and the default sentence. There is no reason to interfere with that as well. 7. Learned counsel requested that on account of financial difficulties petitioner is not able to raise the amount immediately and CRL. R.P. No.2358 of 2009 -: 4 :- hence petitioner may be granted six months’ time to deposit compensation. Counsel further requested that petitioner may be permitted to pay compensation directly to respondent No.1. Considering the circumstances stated by learned counsel I am inclined to grant time till 30.12.2009 to deposit/pay compensation. Resultantly, this revision fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court as ordered by the appellate court. It is made clear that it shall be sufficient compliance with 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 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 petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv