IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 Crl.Rev.Pet.No. 2302 of 2009 ------------------------------ CRA.856/2007 of ADDL.SESSIONS COURT, KOTTAYAM ST.69/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- RENJIH KRISHNAN,S/O.RADHAKRISHNAN, AGED 31 YEARS,KIZHAKKEPOTTAYIL HOUSE,KOTTAMURI.PO, KOTTAMURI KARA,THRIKKODITHANAM VILLAGE, CHANGANACHERRY TALUK,KOTTAYAM DISTRICT. BY ADV. SRI.JACOB GEORGE (PATHAZHAKKUZHIKAL) SRI.GEORGE KARITHANAM VARGHESE RESPONDENTS/ RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. GIRISH GOPINATH,AGED 31 YEARS, S/O.GOPINATH,VINAYAKA BHAVAN,KOTTAMURI.P.O, THRIKKODITHANAM,CHANGANACHERRY TALUK, KOTTYAM DISTRICT. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2302 of 2009 --------------------------------------- Dated this 16th day of July 2009 ORDER 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 him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Kottayam in criminal appeal No.856 of 2007 arising from S.T.No.69 of 2007 of the court of learned Judicial First Class Magistrate, Changanacherry. According to respondent No.2, petitioner issued Ext.P1, cheque dated 24-07-2006 for Rs.800000/- for discharge of a liability. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Issue and service of statutory notice are proved by Exts.P4 to P6. Ext.P8 is the reply sent by petitioner. According to the petitioner, for giving visa to him respondent No.2 demanded Rs.100000/- and as he had no money he gave a signed blank cheque for the said purpose. Respondent No.2 did not arrang visa, nor did he return the cheque. That cheque was misused. Respondent No.2 gave evidence as PW1 regarding the transaction and proved Ext.P1, the cheque. As against what is contended when questioned under section 313 of the Code of Criminal Procedure, what petitioner stated in Ext.P8, reply is that himself and Crl.R.P.No.2309 of 2009 2 parents had financial transactions with respondent No.2, received a loan of Rs.155000/- and signed blank cheques and signed blank stamp papers were obtained from them. Of the said amount, petitioner and his parents returned Rs.55000/- and the balance payable was only Rs.100000/-. Signed blank cheque given to respondent No.2 has been misused. Respondent No.2 sent Ext.D1 reply. It is contended that due execution of cheque is not proved. 3. Apart from raising contention as to how else the cheque happened to be in the custody of respondent No.2 petitioner has not given any evidence, nor has he successfully brought out circumstances which probabilised his version. Mere fact that cousin of respondent No.2 has filed a suit against father of petitioner is not by itself sufficient to accept his version regarding execution of the cheque. Courts below considered the evidence and found in favour of due execution of the cheque. That finding rest on a proper appreciation of the evidence and required no interference. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of Rs.800000/- to respondent No2. Default sentence of simple imprisonment for one month was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court, fine of Rs.800000/- and provided default sentence of simple imprisonment for Crl.R.P.No.2309 of 2009 3 one month. Learned counsel requested that fine may be converted as compensation payable to respondent No.2 directly and that petitioner may be granted six months time to make the payment. Learned counsel states that petitioner is not able to raise the amount immediately due to financial difficulties. Considering the nature of the offence and object of legislation I am inclined to think that simple imprisonment ordered by the appellate court and compensation payable to respondent No.2 is sufficient in the ends of justice. Petitioner is granted time till 30-12-2009 to deposit compensation. Resultantly this revision is allowed in part to the following extent: 1. While retaining substantive sentence as modified by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to deposit in the trial court for payment to respondent No.2 Rs.800000/- (Rupees Eight Lakhs Only) as compensation under section 357(3) of the Code of Criminal Procedure before 30-12-2009 failing which petitioner has to undergo simple imprisonment for two months. 2. 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 his counsel acknowledging receipt of compensation within the period Crl.R.P.No.2309 of 2009 4 aforesaid. 3. 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 Sbna/