IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Crl.Rev.Pet.No. 2643 of 2009() -------------------------------------------- CRA.227/2008 of IV ADDITIONAL SESSIONS JUDGE ADHOC-II, THOUDPUZHA ST.179/2007 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA ...................................................................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SREEKUMAR N., AMBALAPPATU HOUSE,MUNIYARA P.O.,IDUKKI DISTRICT. BY ADV. MR.SUMAN CHAKRAVARTHY RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD.,356,ARCOT ROAD,KODAMBAKKOM,CHENNAI, REPRESENTATION BY ITS POWER OF ATTORNEY HOLDER, MR.A.V.SANTHOSH,S/O.VIJAYABHANU,ASST.BUSINESS MANAGER,THODUPUZHA BRANCH. 2. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.S.HRITIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH,J -------------------------------- Crl.R.P.No.2643 of 2009 ------------------------------- Dated this the 17th August,2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I propose to pass in this revision which is not prejudicial to him. 2. This Revision is in challenge of judgment of learned Additional Sessions Judge -II, Thodupuzha in Criminal Appeal No.227/2008 confirming conviction and sentence of petitioner in S.T.No.179/2007 of the Court of learned Chief Judicial Magistrate, Thodupuzha, for offence punishable under section 138 of the Negotiable Instruments Act (for short 'The Act'). According to Respondent 1, petitioner owed Rs.53,515/- (Rupees Fifty Three Thousand Five Hundred and Fifteen only) and for that amount, the petitioner issued Ext.P6, cheque dated 24/1/2007. That cheque was dishonoured for insufficiency of funds as proved by Exts.P5,P7 and P8. Service of Statutory notice on the petitioner is proved by Exts.P9 and P10. Manager of Respondent No.1 authorised by Exts.P1 and P2 gave evidence as PW1. According to PW1, one Shibu had subscribed to a kuri run by Respondent No.1, having sala of Rs.1 Lakh, prized the same and received Rs.75,000/- (Rupees Crl.R.P.No.2643 of 2009 2 Seventy Five Thousand only) as per cheque. Petitioner is the guarantor in that transaction. Petitioner undertook due repayment of the amount in instalments. The kuri terminated on 20/4/2006. Petitioner issued Ext.P6, cheque for payment of the balance sum of Rs.53,515/-(Rupees Fifty Three Thousand Five Hundred and Fifteen only). Petitioner contended that at the time of Shibu receiving the amount, signed blank cheques of shibu and himself seems were taken. Respondent No.1 had promised that in case of default in payment of instalments, it will proceed only against Shibu. The signed blank cheque given by petitioner has been misused. The court below did not accept that contention of petitioner. 3. It is not disputed that Ext.P6, cheque is signed by the Petitioner and drawn on the account maintained by him. It is also not disputed that he had handed over that cheque to respondent No.1 in connection with chitty transaction between respondent No.1 and Shibu. The contention is only that at the time of the transaction, respondent No.1 had promised petitioner that it will not proceed against the Crl.R.P.No.2643 of 2009 3 petitioner in case of shibu defaulting payment of the instalments. Evidence shows that petitioner was a guarantor in the transaction and undertook to clear the liability of Shibu towards respondent No.1. Exts.P3 and P4 also support the evidence of PW1. In the circumstances I find no reason to interfere with the finding of the court below regarding due execution of cheque and the consequent conviction of the petitioner. 4. Learned Chief Judicial Magistrate sentenced petitioner to undergo simple imprisonment for three months. There is also a direction for payment of Rs.54,000/- (Rupees Fifty Four Thousand only) to respondent No.1 by way of compensation. A default sentence of imprisonment for three months is also provided. Appellate court did not interfere with the sentence direction for payment of compensation or the default sentence. It is contended that sentence awarded is excessive. Having regard to the nature of the offense and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere Crl.R.P.No.2643 of 2009 4 with the direction for payment of compensation or the default sentence, at the instance of petitioner. 5. Learned counsel requested that Petitioner may be granted 5 months' time to deposit compensation. Learned counsel stated that on account of financial difficulties, petitioner is not able to raise the entire amount immediately. It is further requested that petitioner may be permitted to pay compensation directly to respondent No.1. Having regard to the circumstance I am inclined to grant time till 18/1/2001 to deposit compensation. Resultantly this revision petition is allowed in part to the following extent:- 1. Sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 18/1/2010 to deposit compensation in the trial court as ordered by that court .In case of default he has to suffer imprisonment as ordered by the court. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid Crl.R.P.No.2643 of 2009 5 compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed statement in the trial court through his counsel acknowledging receipt of compensation within the time aforesaid. 4. Petitioner shall appear in the trial court on 19/1/2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P JOSEPH,JUDGE ssn