IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 Crl.Rev.Pet.No. 2948 of 2009() ------------------------------ CRA.807/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.1499/2003 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- M.V.CHERIAN, POIKAYIL HOUSE, NATTAKOM.P.O., KOTTAYAM. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN RESPONDENTS/STATE AND COMPLAINANT: --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.K.SUNNY, EZHAKUNNEL HOUSE, THALAKODU.P.O., KOTHAMANGALAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.2948 of 2009 ---------------------------------------- Dated this the 23rd day of September, 2009 ORDER The revision petitioner is the accused in C.C.No.1499 of 2003 on the file of the Judicial Magistrate of the First Class-III, Kottayam. He was prosecuted by the second respondent alleging offence under section 138 of the Negotiable Instruments Act. The trial court after due trial arrived a conclusion of guilt. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for a period of 4 months and to pay an amount of Rs.1,90,000/- as compensation to the second respondent under section 357(3) of the Code of Criminal Procedure. 2. Aggrieved by the above conviction and sentence Criminal Appeal No.807 of 2006 was filed before the Sessions Judge, Kottayam. The learned Additional Sessions Judge, to whom the appeal was made over, by judgment dated 16/7/2009, dismissed the appeal. 3. Now assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. Having heard the learned counsel for Crl.R.P.No.2948 of 2009 2 the revision petitioner and perusing the judgments of the courts below, I find that the second respondent had succeeded to establish that the revision petitioner owed a sum of Rs.3 lakhs to the 2nd respondent and in discharge of the said liability Ext.P2 cheque was issued and that when Ext.P2 was sent for collection it was returned bounced for insufficiency of funds as evidenced by Exts.P3 and P4 memo and intimation. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P5 was caused. Despite the acknowledgment of the same as evidenced by Ext.P7 the liability was not discharged. The courts below rejected the defence that Ext.P2 cheque was not issued to the second respondent but issued to DW.2. Having gone through the judgment impugned and hearing the learned counsel, I find that the courts below were justified in giving reliance to the testimony of PW.1 which is corroborated by Exts.P1 to P8 and the legal presumptions under section 118 and 139 of the Negotiable Instruments Act. In the light of the evidence of PW.1 supported by Exts.P1 to P8 and legal presumptions, the defence is devoid of merits. The courts below had correctly appreciated the evidence. I find that the conviction under challenge is no Crl.R.P.No.2948 of 2009 3 way vitiated. But, having regard to the fact that the pending trial the revision petitioner discharged a sum of Rs.1,10,000/- and that the financial difficulties had led him to face the prosecution, I find that the revision petitioner is entitled to leniency in sentence and that imprisonment till rising of the court would meet the ends of justice. 4. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court. Direction to pay compensation is sustained. In default of payment of compensation the revision petitioner shall undergo simple imprisonment for six months. The revision petitioner is granted six months time to pay the compensation provided a bond for Rs.25,000/-(Rupees twenty five thousand only) is executed with 2 solvent sureties each for the like sum to the satisfaction of the trial court within 15 days. P.S.GOPINATHAN, JUDGE skj.