IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.REV.PET.NO. 1772 OF 2009() ----------------------------------------------- CRA.246/2008 OF SESSIONS COURT, ALAPPUZHA CC.101/2006 OF JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): ACCUSED: ---------------------------------------------- MOHANAN, S/O.CHELLAPPAN, AGED 44, OMANA BANGLAW, PERUNNA, FATHIMA PURAM P.O. CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. BABU ANTONY, S/O.ANTONY, MUKKATTU KUNNEL HOUSE, PERUMBANCHI P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. 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 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = CRL. R.P. NO.1772 of 2009 = = = = = = = = = = = = = = = = Dated this the 8th day of June, 2009 O R D E R -------------- Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. 2. On concurrent findings entered by the courts below that petitioner issued the cheque for discharge of a legally enforceable debt/liability he stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, ”the Act”). Sentence awarded by learned magistrate was modified by the appellate court. 3. According to respondent No.1, petitioner borrowed Rs.1,25,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 25.11.2005. That cheque was returned for insufficiency of funds as proved by Exts.P2 and P3. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Issue and service of notice are not disputed, and proved by Ext.P4 to P6. Respondent No.1 gave evidence as P.W.1 and testified to his case. According to petitioner he had given a signed blank CRL. R.P. NO.1772 OF 2009 -: 2 :- cheque to his friend, D.W.1 in connection with another transaction. D.W.1 claimed that petitioner availed a loan of Rs.50,000/- from him and issued a signed blank cheque as security. Petitioner repaid that amount to him within three months of the transaction but he could not return the cheque to the petitioner in time. D.W.1 lost that cheque while traveling. Courts below were not inclined to accept that evidence of D.W.1 and found that petitioner issued the cheque in favour of respondent No.1 as pleaded by the latter. It is that finding which is under challenge in this revision. 4. It is true that petitioner has got a different case and he examined D.W.1 in proof of that. But question arises whether explanation of petitioner and evidence of D.W.1 can be accepted. D.W.1 is concededly a friend of petitioner. His evidence is that in spite of petitioner returning the sum of Rs.50,000/- to him, he could not return the cheque. But he did not say that he intended to return the cheque. His version that he lost the cheque while traveling does not appear to be reliable. If that was the situation necessarily he would have preferred a complaint to the local police and informed the petitioner also about that so that, petitioner could have intimated his bank about the loss of cheque. Nothing of that sort has happened. CRL. R.P. NO.1772 OF 2009 -: 3 :- Moreover, petitioner did not reply to the notice admittedly served on him. If he had no transaction with respondent No.1 or had not issued any cheque in favour of respondent No.1 and the cheque was issued to D.W.1 as claimed by him necessarily he would have given a reply to the notice served on him on behalf of respondent No.1. Courts below have considered the facts, circumstances and evidence on record and concluded that explanation of petitioner cannot be accepted. I do not find reason to interfere as there is no illegality, irregularity or impropriety in that finding. Hence conviction of the petitioner cannot be assailed. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months. He was directed to pay compensation of Rs.1,25,000/- in the court below. But no default sentence was provided. In appeal substantive sentence was modified as simple imprisonment till rising of the court and compensation was converted as fine. In default of payment of fine petitioner was directed to undergo simple imprisonment for two months. I do not find reason to interfere with the substantive sentence imposed on the petitioner by the appellate court. That part of the sentence shall remain in force. CRL. R.P. NO.1772 OF 2009 -: 4 :- 6. Learned counsel for petitioner submitted that fine awarded by the appellate court may be converted as compensation payable to respondent No.1 directly. He also prayed for six months’ time to pay the amount. In the facts and circumstances of the case and considering the submission of learned counsel I am inclined to allow the request. Fine of Rs.1,25,000/- awarded by the appellate court is modified as compensation payable to respondent No.1. Petitioner is granted three months’ time to deposit the compensation in the trial court. Resultantly, this revision is allowed in part to the following extent: (i) Fine of Rs.1,25,000/- awarded by the appellate court is converted as compensation payable to respondent No.1. (ii) Petitioner is granted three months' time from this day to deposit Rs.1,25,000/- (Rupees One lakh and Twenty five thousand only) as compensation in the trial court for payment to respondent No.1. In case of default, he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and CRL. R.P. NO.1772 OF 2009 -: 5 :- respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period of three months. Petitioner shall appear in the trial court on 10.9.2009 to receive the substantive sentence awarded by the appellate court. THOMAS P.JOSEPH, JUDGE. vsv