IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.REV.PET.NO. 2483 OF 2009() -------------------------------------------- CRA.493/2008 OF SESSIONS COURT, KOTTAYAM ST.224/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): ACCUSED ------------------------------------------------ M.K.BHASKARAN, S/O.MADAVANKUTTY, AGED 55, STATE BANK OF INDIA, AGALI BRANCH, ATTAPPADI, PALAKKAD DISTRICT. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. T.N.MUHAMMED KUNJU, THEKKEKARA HOUSE, PUNNAKKUNNAM, KUTTAPPUZHA P.O., THIRUVALLA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 2483 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Sessions Judge, Kottayam in Crl. Appeal No.493 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.75,000/- from him in December, 2003 agreeing to repay the same after two weeks and for repayment of that amount issued Ext.P1, cheque dated 11.1.2004. That cheque was dishonoured as account was closed as seen from Exts.P2 and P3. Notice of dishonour demanding payment was served on petitioner, which is proved by Exts.P4 and P5. Respondent No.1 gave evidence as P.W1 and testified to his case. Petitioner stated that Pamod, son of his friend borrowed Rs.10,000/ from respondent No.1 and at that time he gave his signed blank cheque as security which respondent No.1 has misused. Courts below did not accept that explanation of petitioner. It is contended by learned counsel that conviction of petitioner is not correct. It is also contended that petitioner was not given opportunity to examine the said Promod as a CRL. R.P.. No.2483 of 2009 -: 2 :- witness. Learned counsel states that on the request of petitioner summons was issued to the said Promod who accepted the summons but he did not turn up. In spite of request of petitioner no steps were taken to ensure the presence of Promod. 2. Even as per the version of petitioner, Promod is son of his friend. Petitioner could have very well produced Promod as witness on his side. Summons was issued to the said Promod as requested by petitioner. This is a case where petitioner who is a Bank employee is stated to have given a signed blank cheque to respondent No.1. It is against normal conduct for a person particularly, a Bank employee who is aware of the consequence of doing so, issuing a signed blank cheque inviting prosecution under Section 138 of the Act. That apart, petitioner has not replied to the notice served on him. Respondent No.1 denied that he received the cheque in the circumstances stated by petitioner. Petitioner has not produced any document to show that Promod had borrowed any amount from respondent No.1. In these circumstances I am not inclined to think that remand of the case for examination of Promod is required. On going through the judgments under challenge and on hearing learned counsel I am satisfied that courts below have considered the evidence and rightly found in favour of due execution of the cheque. CRL. R.P.. No.2483 of 2009 -: 3 :- 3. Learned Sessions Judge modified the substantive sentence as simple imprisonment till rising of the court. Sentence of fine of Rs.75,000/- and default sentence were confirmed. Learned counsel requested that fine may be converted as compensation payable to respondent No.1 directly. He also requested that petitioner may be granted six months' time. Counsel submitted that petitioner is a heart patient undergoing treatment and is unable to raise the amount immediately. Having regard to the circumstances stated by learned counsel and considering the object of legislation I am satisfied that fine awarded by the appellate court can be converted as compensation payable directly to respondent No.1. Considering the request made by learned counsel, petitioner is granted time till 30.12.2009 to deposit the compensation. In case of failure petitioner has to undergo simple imprisonment for three months. Resultantly, this revision petition is allowed in part to the following extent: (i) While retaining the substantive sentence as modified by the appellate court sentence of fine is set aside. Instead, petitioner directed to deposit in the trial court for payment to respondent No.1 as CRL. R.P.. No.2483 of 2009 -: 4 :- compensation Rs.75,000/- (Rupees Seventy five thousand only) under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner has to undergo simple imprisonment for three months. (ii) It is made clear that it shall be sufficient compliance with the direction regarding 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 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