IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.REV.PET.NO. 2610 OF 2009() -------------------------------------------- CRA.110/2008 OF ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.179/2007 OF JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- MATHEW, ELLAMTHURUTHIYIL, MURINJAPUZHA, PERUVANTHANAM, PEERMEDU. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. M.V.SOMAN PILLAI, LAKSHMI NIVAS (KALATHIL), PERUNNAI, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2610 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Kottayam in Crl. Appeal No.110 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 issued Ext.P1, cheque dated 26.3.2005 for Rs.65,000/- for discharge of a liability. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. According to respondent No.1, notice was returned unclaimed in spite of intimation given to the petitioner. Respondent No.1 gave evidence as P.W.1 and testified to his case. Per contra, it is contended by learned counsel that petitioner purchased a Maruti Car belonging to respondent No.1 and gave Ext.P1, cheque towards sale consideration of Rs.25,000/-. But it came out that there were several loans raised on the security of the car concerning which creditors of respondent No.1 filed complaints to the police. Following that, petitioner returned the car to respondent No.1 but the cheque was not returned to him and that has been misused. Petitioner produced Ext.D1, copy of sale agreement. Contention of CRL. R.P. No.2610 of 2009 -: 2 :- petitioner was not accepted by the courts below. Contention urged in this revision is that in the light of Ext.D1, finding of courts below as to due execution of the cheque for discharge of a legally recoverable debt/liability is erroneous. 2. Exhibit D1 is not disputed by respondent No.1 also. In fact it was proved through him. But he denied that car was returned to him and that cheque was given towards sale consideration. Exhibit D1 did not in any away affect the case of respondent No.1. It was in these circumstances that courts below found in favour of due execution of the cheque. It is admitted that petitioner had liability towards respondent No.1 and in connection with that, the cheque was given. Courts below found that there is no reason to disbelieve the evidence of P.W.1. 3. To prove that intimation was given to petitioner on the registered notice, respondent No.1 examined P.W2, Postman. He stated that intimation was given to the petitioner on 23.4.2005 and the registered notice was kept in the post office till 29.4.2005. Since it was not claimed during that time it was returned to the sender. Thus there is evidence of due service of notice on petitioner. In the circumstances there is no reason to interfere with the conviction of petitioner. CRL. R.P. No.2610 of 2009 -: 3 :- 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.65,000/- to respondent No.1. Default sentence of imprisonment for one month was also provided. In appeal substantive sentence was modified as simple imprisonment till rising of the court and compensation was converted as fine of Rs.65,000/- with default sentence of imprisonment for two months. It was further directed that fine if realised will be given to respondent No.1 as compensation. 5. Learned counsel requested that fine may be converted as compensation payable directly to respondent No.1. It is also requested that six months’ time may be granted to the petitioner to deposit compensation since petitioner is not able raise the amount immediately on account of financial difficulties. Considering the circumstances stated by learned counsel petitioner is granted time till 12.1.2010 to deposit the compensation. 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 and instead, petitioner is directed to deposit Rs.65,000/- CRL. R.P. No.2610 of 2009 -: 4 :- (Rupees Sixty five thousand only) in the trial court for payment to respondent No.1 as compensation under Sec.357(3) of the Code of Criminal Procedure on or before 12.01.2010 failing which petitioner shall undergo simple imprisonment for three months. (ii) 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 compensation within the said period. Petitioner shall appear in the trial court on 13.01.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv