IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Crl.Rev.Pet.No. 456 of 2002() ---------------------------------------- CRA.111/1999 of SESSIONS COURT, THODUPUZHA CC.558/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED. ------------------------------ B.RAJU, CHEMMANGATTU HOUSE, QUARTER NO.F1.38, K.S.E.B. COLONY, MOOLAMATTAM, NOW RESIDING AT ARAKKULAM (P.O.) THODUPUZHA. BY ADV. SRI.R.SUDHEER RESPONDENTS: RESPONDENT 1 AND 2 COMPLAINANT. ----------------------- 1. STATE OF KERALA , REP. BY THE PUIBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.SWAMINATHAN NAIR, MADATHIL HOUSE, ARAKULAM KARA, ARAKULAM VILLAGE. ADV. SRI.K.R.SACHIDANTHAN FOR R2 SRI.M.S.VINAYA RAJ FOR R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.3042/2002 IN CRL.RP. NO.456/2002 DISMISSED 23./06.2008 SD/- A.K.BASHEER , JUDGE /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.456 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June 2008 ORDER Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.2 herein. The trial court found the petitioner guilty and he was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.25,000/- and in default of payment of fine, to suffer simple imprisonment for three more months. It was directed that the amount realized from the accused/petitioner shall be paid to the complainant as compensation under Section 357(3) of the Code of Criminal Procedure. In appeal, the order of conviction was confirmed by the Sessions Court. However, substantive sentence was reduced to simple imprisonment for three months. Hence this revision petition. 2. The case of the complainant was that the accused had borrowed Rs.25,000/- from him and issued Ext.P1 cheque in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds Crl.R.P.No.456 OF 2002 :: 2 :: in the account of the accused. The statutory demand notice did not evoke any response. 3. The complainant was examined as PW1 and the bank official was examined as PW2. Exts.P1 to P7 were also marked on the side of the complainant. DW1 and DW2 were examined on the side of the accused. 4. The defence set up by the accused as discernible from his statement under Section 313 of the Code and also from the trend of cross examination, was that the liability had been discharged by him. For this purpose, the accused had examined DWs1 and 2, the latter being his own brother. However, the oral testimonies of these two witnesses were found totally unreliable by the courts below. Significantly, the accused had admitted his signature in Ext.P1 cheque. The accused had not succeeded in proving the plea of discharge raised by him. The feeble attempt made by him to substantiate the above plea had miserably failed. Crl.R.P.No.456 OF 2002 :: 3 :: 5. I have carefully perused the deposition of the two defence witnesses and other relevant materials on record. I do not find any merit in the contentions raised by the petitioner. The courts below, in my view, were justified in holding the petitioner guilty under Section 138 of the Negotiable Instruments Act. Therefore, no interference is warranted in the matter of conviction. 6. However, keeping in view the amount involved in the case, I am satisfied that the substantive sentence of imprisonment can be deleted. Therefore, in lieu of the sentence of imprisonment for three months, petitioner is directed to undergo imprisonment till the rising of the court. But petitioner shall pay a sum of Rs.35,000/- as compensation, which on realization shall be released to the complainant under Section 357(3) of the Code of Criminal Procedure. Petitioner shall appear before the trial court on September 15, 2008. On his appearance, the learned Crl.R.P.No.456 OF 2002 :: 4 :: Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court. If the petitioner fails to appear and remit the amount of Rs.35,000/- as directed above, the sentence imposed on him by the appellate court shall come into force and it shall be executed by the learned Magistrate. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.456 OF 2002 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.456 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 23rd June 2008