IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.Rev.Pet.No. 2376 of 2009() ------------------------------ CRA.539/2008 of ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC-III), N.PARAVUR CC.1150/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOY P.P., AGED 55 YEARS, PURACKADAN HOUSE, NEAR KUNNEPPILLY, THIRUVALLOOR P.O., ALANGAD. BY ADV. SRI.P.T.SEBASTIAN TOMY RESPONDENT(S):/RESPONDENTS/ STATE & COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KOZHIKKADAN MODERN RICE MILL, KANJOOR VADAKKUMBHAGAM VILLAGE, ALUVA TALUK, REP. BY ITS PROPRIETOR, K.O.ANTONY, KOZHIKKADAN HOUSE, KANJOOR, VADAKKUMBHAGAM VILLAGE. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2376 of 2009 -------------------------------------- Dated this the 27th day of July, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Heard counsel for petitioner and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge(Adhoc-III), North Paravur in Crl.Appeal No.539 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.2, petitioner purchased rice from it on credit and issued Ext.P1, cheque dated 7.8.2006 for the sum of Rs.17,060/- due to it. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Service of statutory notice on petitioner is proved by Exts.P3 to P5 series. Proprietor of respondent No.2 gave evidence as PW1 and testified to his case. Ext.P6 is the licence, stated in the judgment of learned magistrate as dated 28.10.2006 but according to the petitioner issued only on 25.10.2007. According to the petitioner, he had given signed blank cheque as security to respondent No.2 and later, as he stopped purchasing rice from respondent No.2 on account of low quality of the product, respondent No.2 misused the cheque and presented it. It is contended by learned counsel that finding of the courts below Crl.R.P.No.2376/2009 2 regarding due execution of the cheque is not correct. At any rate there is no evidence to show that PW1 was the proprietor of respondent No.2 during the relevant time. 3. So far as execution of the cheque is concerned, it is not disputed that Ext.P1 contained signature of petitioner and is drawn on the account maintained by him. Contention is that writings in Ext.P1 are in different ink and that indicated that it was fabricated. Mere fact that the writings in Ext.P1 are in different ink is not sufficient to warrant any such conclusion. Petitioner does not dispute that he had transaction with respondent No.2. He did not respond to the notice served on him. As such there is no reason to interfere with the finding regarding execution of the cheque. 4. Then the question is whether PW1 was the proprietor of respondent No.2 during the relevant time. To prove that, he has produced Ext.P6. Assuming that it was dated 25.10.2007, Ext.P6 lent support to the claim of PW1 that he was the proprietor of respondent No.2 during the relevant time. I find that even in the statutory notice PW1 has described him as the proprietor which went unanswered. On the facts and circumstances of the case there is no reason to disbelieve the evidence of PW1 that he was proprietor of respondent No.2 during the relevant time. On going through the judgments under challenge and hearing learned counsel I do not find reason to interfere with the conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Crl.R.P.No.2376/2009 3 Rs.17,060/- to respondent No.2. A default sentence of imprisonment for three months was provided. Appellate court did not interfere with the substantive sentence but converted compensation payable as fine of Rs.17,060/- with default sentence of imprisonment for one month. Learned counsel submitted that substantive sentence imposed is excessive. Learned counsel requested that substantive sentence may be modified and that fine may be converted as compensation payable to respondent No.2 directly. Counsel also requested that petitioner may be granted six months’ time to deposit compensation. It is stated that business of the petitioner has gone into difficulties. 6. Having regard to the nature of offence, object of legislation and considering the circumstances stated by learned counsel I am satisfied that substantive sentence can be modified as simple imprisonment till rising of the court and that fine can be converted as compensation payable on or before 30.12.2009. In case of default, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court on or before 30.12.2009 for payment to respondent No.1 Rs.17,060/-(Rupees Seventeen thousand and sixty only) as compensation failing which petitioner has to undergo simple imprisonment for three months. Crl.R.P.No.2376/2009 4 iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through its counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31.12.2009. THOMAS P.JOSEPH, Judge. cks