IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 Crl.Rev.Pet.No. 928 of 2000 CRA.12/2000 of SESSIONS COURT, MANJERI S.T..4425/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: C.P.RAMESAN, S/O VASU CHALACKAL PARAMBIL HOUSE PACHATTIRI P.O. TIRUR BY ADV. SRI.A.BALAGOPALAN SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN RESPONDENTS: 1. T. CHANDRAN, SON OF CHENNAN 'PREM BHAVAN', NEAR VISWAS THEATRE, P.B.ANGADI P.O., TIRUR 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY ADV. SRI.P.V.SURENDRANATH PUBLIC PROSECUTORSRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/2/2008, THE COURT ON 29/02/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.928 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of February 2008 ORDER Petitioner was concurrently found guilty under Section 138 of the Negotiable Instruments Act by the trial court as well as the appellate court, and sentenced to undergo simple imprisonment for two months and to pay a sum of Rs.50,000/- to the complainant as compensation under Section 357(3) of the Code of Criminal Procedure. 2. The case of the complainant was that the accused had borrowed a sum of Rs.50,000/- from him and issued Ext.P1 cheque in discharge of the said liability. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of the funds in the account of the accused. Though a statutory notice was issued demanding payment, the accused did not discharge the debt, nor did he bother to send a reply. Hence the complaint. 3. Before the trial court, the complainant was examined as PW1 and Exts.P1 to P4 were marked on his side. There was no oral or documentary evidence on the side of the accused. The defence Crl.R.P.No.928 OF 2000 :: 2 :: set up by the accused appeared to be that he had borrowed a sum of Rs.20,000/- from the complainant and at the time of borrowal he had handed over a signed blank cheque to the complainant as security. According to the accused, the complainant had misused the said blank cheque to launch the prosecution against him. 4. Curiously, the accused had not cross-examined PW1. The evidence was closed and the case was disposed of by the learned Magistrate convicting the accused. In appeal, the accused had taken up a contention that he had not been given an opportunity to cross examine PW1. But the learned Sessions Judge, on perusal of the records, found that the above contention was not sustainable. It was revealed from the records that the accused had filed a petition under Section 311 of the Code of Criminal Procedure to recall PW1. The prayer was allowed and the case was posted for cross examination of PW1. Though three or four adjournments were granted to the accused, PW1 was not cross examined. At that stage, the accused had submitted before the court that he was prepared to settle the matter. But no settlement did take place. The case was disposed of after about ten months of the reopening of the case. Still the accused did not either cross examine PW1 Crl.R.P.No.928 OF 2000 :: 3 :: nor did he adduce any evidence on his side. The learned Sessions Judge had therefore rejected the prayer for remitting the case to the trial court. Accordingly, the order of conviction and sentence passed by the trial court was confirmed by the learned Sessions Judge. 5. Having heard learned counsel for the parties and having perused the materials available on record, I do not find any reason to interfere with the concurrent order of conviction passed against the petitioner. As mentioned earlier, the only defence set up by the accused was that he had borrowed a sum of Rs.20,000/- and as security for that amount he had issued a blank signed cheque. In other words, the accused admitted his signature in Ext.P1 cheque. More importantly, he did not adduce any evidence in support of the contention raised by him. He did not choose to cross examine PW1 also, though sufficient opportunity was afforded to him. 6. In the above facts and circumstances, I am satisfied that the court below was justified in holding the petitioner guilty of the offence under Section 138 of the Act. There is no merit in any of the contentions raised by the petitioner. 7. However, since it is submitted that the petitioner is Crl.R.P.No.928 OF 2000 :: 4 :: prepared to remit the amount of compensation if some reasonable time is granted to him, I am of the view that he can be granted an opportunity to do so; in which event the substantive sentence of imprisonment can be modified and reduced. If the petitioner appears before the court below on March 31, 2008 and remits the amount of compensation as directed by the Sessions Court, the sentence of imprisonment for two months shall stand set aside and in lieu of that he will undergo imprisonment for one day. 8. If the petitioner fails to appear and remit the amount of compensation, the sentence of imprisonment imposed on him by the courts below shall stand confirmed. On appearance of the petitioner and on remittance of the amount of compensation, the learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on that day. The amount, if deposited, shall be released to the complainant. Crl.R.P. is disposed of in the above terms. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.928 OF 2000 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.928 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated, 29th Feb. 2008