IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3812 of 2009() ------------------------------ S.T.No.343 OF 2006 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, KOZHIKODE CRA.No.1037 of 2007 OF SESSIONS COURT, KOZHIKODE REVN. PETITIONER: --------------------- PADMINI, W/O. KUMARAN, INCOME TAX OFFICE, MANANCHIRA, KOZHIKODE. BY ADV. SRI.V.KRISHNA MENON RESPONDENTS: --------------- 1. ABOOBACKER, S/O. PAKKER, 57 YEARS, PUTHIYEDATH THAZHE, ULLIYERI AMSOM DESOM, KOYILANDY, KOZHIKODE DIST. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- Crl.R.P.No.3812 of 2009 -------------------------------- Dated this the 16th day of December, 2009 ORDER The Judicial Magistrate of the First Class-I, Kozhikode in S.T.No.343 of 2006 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for four months and to pay Rs.45,000/- to the first respondent as compensation under Section 357(3) of the Code of Criminal Procedure. In Criminal Appeal No.1037 of 2007, the Sessions Judge, Kozhikode while confirming the conviction, reduced the substantive sentence to imprisonment till rising of the court. The compensation was reduced to Rs.40,000/- with default sentence of simple imprisonment for one month. Now this revision petition. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent as PW.1 had succeeded to establish that the revision petitioner borrowed a sum of Rs.40,000/- from the 1st respondent in July, 2005, in discharge of which Ext.P1 cheque dated 20/12/2005 drawn on Union Bank of India, Kozhikode branch was issued and that when sent for collection, Ext.P1 was Crl.R.P.No.3812 of 2009 2 returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memo and intimation dated 31/12/2005 and 6/1/2006 respectively. Demanding discharge of the liability, a lawyer notice copy of which was marked as Ext.P4 was caused and that despite the acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. 3. The revision petitioner took up a defence that Ext.P1 was issued blank as a security while borrowing a sum of Rs.5,000/-. Other than the suggestion, no evidence let in by the revision petitioner to the effect that the cheque was delivered to the first respondent in the manner stated by him. The result is that the evidence of PW.1, that revision petitioner owed a sum of Rs.40,000/- and in discharge of that, Ext.P1 was issued remains uncontroverted. The evidence of PW.1 is supported by presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The materials on record does not constitute a probability to rebut the presumptions, which are in favour of the first respondent. In the above circumstance, I find that the courts below were justified in believing the testimony of PW.1 and coming to a conclusion of guilty. The conviction is based on Crl.R.P.No.3812 of 2009 3 cogent evidence. 4. The appellate court, probably on gender consideration, has been very lenient in reducing the substantive sentence to imprisonment till rising of the court. If it all erred, it is only towards leniency. The order to pay compensation is quite appropriate. Though the default sentence is not proportionate, sentence also requires no interference. In the result, this revision petition is dismissed as devoid of merit. The revision petitioner is granted six months time to remit the compensation. Till then, the bail bond executed by her shall remain in force. P.S.GOPINATHAN, JUDGE skj.