IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 Crl.Rev.Pet.No. 2666 of 2009() ------------------------------ CRA.559/2006 of SESSIONS COURT, PALAKKAD ST.2970/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------- P S NANDAKISHORE S/o. SIDHARTHAN NANDADEEPAM CALICUT BYEPASS ROAD SEKHARIPURAM, PALAKKAD BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. K S MANOJ S/o. SUNDARAN NAIR VINOD VIHAR MUTHAMPALAYAM OLAVAKKODU, PALAKKAD 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2666 of 2009 --------------------------------------- Dated this 18th day of August 2009 ORDER 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. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. Judgment of learned Sessions Judge, Palakkad in Criminal Appeal No.559 of 2006 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act is under challenge in this revision. According to respondent No.1, petitioner borrowed Rs.46000/- on 15-01-2002 and a further sum of Rs. Two lakhs on 07-02-2001 from him undertaking to repay the amount with interest at the rate of 18% per annum and executed a demand promissory note. On his demanding repayment petitioner issued Ext.P1, cheque dated 05-08-2004 for Rs.150000/-. That cheque was dishonoured as account was closed as seen from Exts.P3, P4, P8 and evidence of PW2, manager of the drawee bank. Petitioner did not reply. But he contended that he has a chitti transaction with respondent No.1 and at the time of joining the chitty signed blank cheques were taken from him. He discharged the liability but demanding exhorbitant interest. Respondent No.1 filled up the cheque and filed the complaint. Respondent No.1 had preferred two Crl.R.P.No.2666 of 2009 2 other cases against him for similar offences which is proved by Exts.D1 and D2, copy of the complaints. Courts below found that explanation offered by petitioner is not acceptable and found him guilty. Concurrent finding is challenged as not correct. 3. The mere fact that against the petitioner respondent No.1 has preferred two other cases also as proved by Exts.D1 and D2 is of no assistance to the petitioner in proving or probabilising his contention. It has come in evidence that respondent No.1 had preferred a complaint against the petitioner to the local police where petitioner and respondent No.1 were summoned. There was an agreement as per which petitioner agreed to pay the amount due to respondent No.1. It is thereafter that the cheque in question was issued. But petitioner has no case that the cheque was obtained under threat or coercion. It is also not disputed that petitioner had transaction with respondent No.1 though according to the former, it was a chitty transaction and signed blank cheques were obtained. That suggestion has been denied by respondent No.1. Petitioner has not adduced any evidence or brought out circumstance to prove or probabilise that contention. He has also not replied to the statutory notice served on him. In these circumstances I do not find reason to interfere with the concurrent finding entered by the courts below regarding due execution of the cheque. 4. It is contended by learned counsel that as the evidence Crl.R.P.No.2666 of 2009 3 show, the cheque is dated 05-08-2004 and the account was closed on 27-04-2004. But closure of account even before issue of cheque did not take the case outside the scope under section 138 of the Act. It is sufficient that even before drawing of the cheque petitioner had maintained an account with the drawee bank and the cheque is drawn on that account. On going through the judgments under challenge and hearing learned counsel for petitioner I find no reason to interfere with the conviction of petitioner. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of Rs.150000/- by way of compensation to respondent No.1. There is also a default sentence of imprisonment for six months. It is contended b;y learned counsel that substantive sentence awarded to the petitioner is excessive. Learned counsel submitted that petitioner is involved in a few other similar cases also with a direction for payment of compensation. Petitioner is unable to raise the entire amount immediately and hence it is requested that petitioner may granted six months' time to deposit compensation. The further request is that petitioner may be permitted to pay compensation directly to respondent No.1. 6. Having regard to the amount involved, there is no reason to interfere with the direction for payment of compensation or default sentence, at the instance of petitioner. Considering the nature of the Crl.R.P.No.2666 of 2009 4 offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. Considering the amount involved and circumstances stated by learned counsel petitioner is granted time till 18-01-2010 to deposit/pay compensation. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 18-01-2010 to deposit compensation in the trial court as ordered by that court. 3. It is made clear that it will be sufficient compliance of 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 period aforesaid. 4. Petitioner shall appear in the trial court on 19-01-2010 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 19-01-2010. THOMAS P JOSEPH, JUDGE Sbna/