IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 1718 of 2009() ------------------------------ CRA.380/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.1792/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------- SUNDARAN, S/O.VELAYUDHAN, VAKKELAVALAPPIL HOUSE, THEKKEVAVANNUR DESOM, NAGALASSERY AMSOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------- 1. C.S.MOIDU, S/O.SULAIMAN, CHERATHUVALAPPIL HOUSE, CHALISSERY AMSOM, PERUMANNUR DESOM, OTTAPALAM TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No. 1718 of 2009 -------------------------------------- Dated this the 2nd day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which will not prejudice him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of the judgment of II Additional Sessions Judge, Palakkad in Crl.Appeal No.380 of 2006 confirming conviction and sentence imposed on the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Case of respondent No.1 is that petitioner owed him Rs.40,000/-, for discharge of that liability he issued Ext.P1, cheque dated 10.10.2003 for the said sum, cheque was dishonoured for insufficiency of funds and that inspite of serving statutory notice, petitioner did not pay the amount. Dishonour of the cheque for the reason above stated and issue and service of statutory notice are proved by Exts.P2 and P3 series. Respondent No.1 gave evidence as PW1 and testified to his case. Contention raised by the petitioner is that he had not borrowed any amount from respondent No.1 and instead, had subscribed to a kuri conducted by respondent No.1 and gave signed blank cheque at the time he received the kuri amount. Petitioner gave evidence as DW1 and proved Ext.D1, copy of plaint in O.S.No.122 of 2005 filed by respondent No.1 against him. Courts below did not accept the contention raised by the petitioner. The contention in the revision is Crl.R.P.No.1718/2009 2 that conviction of the petitioner is not legal and proper. 3. Though the petitioner claimed that he had subscribed to a kuri started by respondent No.1, it came out that it was not he, but his sister who had joined the kuri. Ext.D1 did not in any way improve the case of petitioner. Courts below also adverted to the fact that inspite of being served with notice of dishonour and demand, petitioner did not reply to it. These circumstances along with the evidence of respondent No.1 were taken to hold that due execution of the cheque is proved. Petitioner is not disputing his signature in Ext.P1. On the facts and circumstances and evidence on record I do not find reason to interfre with the conviction of petitioner. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for two months and directed him to pay Rs.40,000/- as compensation under Section 357(3) of the Code of Criminal Procedure. It was also directed that in case of non-payment of compensation, he has to undergo simple imprisonment for one month. Appellate court modified the substantive sentence as simple imprisonment for one month and directed payment of fine of Rs.40,000/-. It was also directed that if the fine is realised, the same shall be paid to respondent No.1 as compensation. 5. It is submitted by learned counsel that petitioner is undergoing imprisonment from 30.5.2009 onwards. In the facts and circumstances of the case I am satisfied that the period of imprisonment already undergone is sufficient so far as the substantive sentence is concerned. There is however, no reason to interfere with the sentence for payment of fine. At this stage, learned Crl.R.P.No.1718/2009 3 counsel submitted that petitioner is prepared to deposit fine within a week from this day. Resultantly, this revision is allowed in part in the following lines: i. Substantive sentence of imprisonment shall be confined to the period of imprisonment already undergone by the petitioner. ii. Petitioner is granted one week's time to deposit fine in the trial court as ordered by the appellate court. iii. In view of the above modification, it is directed that petitioner will be released from the jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Central Prison, Kannur. THOMAS P.JOSEPH, Judge. cks