IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 Crl.Rev.Pet.No. 1987 of 2009() ------------------------------ CRA.611/2007 of SESSIONS COURT, TRIVANDRUM ST.665/2006 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- A.SIVARAJAN, S/O ABHIMANYU PANICKER, SALI BHAVAN, CHERUVATTIYOORKONAM, VELLAIKADAVU, PULIYARAKONAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S): RESPONDETS/COMPLAINANT ------------------------------------- 1. P.SUDHAKARAN NAIR, AMBIKALAYAM, UDAYAGIRI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM, RESIDING AT KUNDAMANBHAGOM, KADAVILA VEEDU, PEYAD P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE 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 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1987 of 2009 -------------------------------------- Dated this the 23rd day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision and 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, Thiruvananthapuram in Crl.Appeal No.611 of 2007 confirming conviction but modifying sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). Case arose on a private complaint preferred by respondent No.1. He alleged that petitioner borrowed Rs.1,00,000/- from him and for discharge of that liability issued Ext.P1, cheque dated 17.5.2005 which was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of notice on petitioner are proved by Exts.P3 to P5. There is no challenge to the finding of courts below regarding cause of dishonour and issue and service of notice on petitioner 3. So far as execution of the cheque for discharge of a legally enforceable debt/liability is concerned, respondent No.1 has given evidence as PW1 and stated that petitioner borrowed the amount and issued the cheque for Crl.R.P.No.1987/2009 2 repayment of that amount. Petitioner claimed that he had some transaction with one Ravi, a neighbour of respondent No.1 and in connection with that, he had given signed blank cheque to the said Ravi. That cheque has been misused. Petitioner did not produce any evidence in support of that contention nor did he reply to the notice served on him. Contention now advanced is that due execution of the cheque is not proved. 4. I have gone through the judgment under challenge. What is available is only the evidence of respondent No.1. Though petitioner has a case how else respondent No.1 got the cheque, he did not adduce evidence or bring out any circumstance in the evidence of respondent No.1 to probabilise his case or to cause suspicion as to the case of respondent No.1 regarding execution of the cheque. It is not shown that evidence of respondent No.1 is not believable. It is not disputed that Ext.P1 contained the signature of petitioner. It is also not disputed that the cheque was drawn on an account maintained by the petitioner. Courts below considered the evidence and came to the conclusion that due execution of the cheque is proved. Petitioner failed to rebut the presumption under Section 139 of the Act. Conviction of petitioner is legal and proper and required no interference. 5. Learned counsel submitted that petitioner is now undergoing imprisonment in connection with this case in Sub Jail, Thiruvananthapuram. The period of imprisonment already undergone by the petitioner is sufficient in the ends of justice. Hence substantive sentence is modified and confined to the period of imprisonment already undergone by him. He shall be released from jail Crl.R.P.No.1987/2009 3 forthwith if not required to be detained otherwise. 6. So far as sentence of fine imposed by the learned Sessions Judge is concerned, I am satisfied that it is sufficient to direct the petitioner to pay compensation of Rupees one lakh to respondent No.1 and in default of payment, to undergo simple imprisonment for three months. 7. Learned counsel requested that petitioner may be granted four months' time to deposit compensation in the trial court. Having regard to the facts and circumstances of the case, I am inclined to grant four months' time to the petitioner to deposit compensation in the trial court. In case of non- payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified and confined to the period of imprisonment already undergone by him. ii. Sentence of fine imposed by the appellate court is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.1, Rs.1,00,000/- (Rupees One lakh only) as compensation under Section 357(3) of the Code of Criminal Procedure within four months from this day failing which, petitioner shall undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent Crl.R.P.No.1987/2009 4 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 aforesaid time. iv. Petitioner shall be released from jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Sub Jail, Thiruvananthapuram. v. Petitioner shall appear in the trial court on 24.10.2009 in case compensation as aforesaid is not deposited/paid within the said period. THOMAS P.JOSEPH, Judge. cks