IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Crl.Rev.Pet.No. 509 of 2001() ----------------------------- CRA NO.34/1998 OF SESSIONS COURT, ALAPPUZHA ST CASE NO.816/1996 OF JUDICIAL FIRST CLASS MAGISTRATE, AMBALAPUZHA. REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- JOHNY THOMAS, KIZHAKKATTOM VEEDU, CHANGAMKARY MURI, EDATHUA VILLAGE. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------- 1. T.V.THOMAS, THAIPARAMBIL VEEDU, EDATHUA, (POWER OF ATTORNEY HOLDER FOR AND ONBEHALF OF THE ORIGINAL COMPLAINANT M.C.KURIAKOSE, MANAKALATHIL VEEDU, PANDANGARI MURI, EDATHUA) 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.509 of 2001 -------------------------------------- Dated this the 3rd day of October, 2008. ORDER First respondent and counsel remained absent. There was no representation. I heard counsel for revision petitioner and Public Prosecutor. 2. Revision petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the Act’). Learned Magistrate sentenced him to undergo simple imprisonment for six months and pay fine of Rs.15,000/-. In appeal, conviction as well as substantive sentence were confirmed but the sentence of fine was modified to Rs.5,000/-. Hence this revision. 3. Counsel for revision petitioner submitted that conviction of revision petitioner is not sustainable. Courts below should have accepted the evidence of DW2. 4. DW1 is the complainant (examined by revision petitioner). He was represented in the proceedings by his power of attorney holder, PW1. Case is that on 23.12.1995 revision petitioner along with PW1 came to the house of DW1 and undertaking to repay the amount within one month, borrowed Rs.10,000/- and for the discharge of that debt issued Ext.P2. That cheque was dishonoured for insufficiency of funds. Notice dated12.2.1996 was served on him on Crl.R.P.No.509/2001 2 14.2.1996. PW1 and DW1 (complainant) have given evidence regarding the transaction. PW2 claimed to have witnessed the transaction and the execution of the cheque. Version of revision petitioner is that he had money transaction with one Jolly Thomas, he had given three signed blank cheques to Jolly Thomas and one of those cheques was misused by DW1. DW2 claimed that revision petitioner had transaction with Jolly Thomas to whom revision petitioner had given signed blank cheques. But he was not able to say whether the transaction between revision petitioner and DW1 is true or not. Nothing is brought out to disbelieve the version of PWs 1 and 2 and DW1 regarding the transaction and issuance of cheque. Due execution of the cheque is proved. Revision petitioner was not able to rebut the presumption under Section 139 of the Act. Hence conviction is legal and proper. 5. So far as sentence is concerned, I am inclined to think that imprisonment till the rising of court and compensation of Rs.15,000/- is sufficient to meet the ends of justice. Revision Petition is allowed in part in the following lines:- (1) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of court. (2) Revision petitioner is directed deposit in the trial court for payment to the complainant as compensation Rs.15,000/- (Rupees Fifteen thousand only) within two months from this day failing which, he shall undergo Crl.R.P.No.509/2001 3 simple imprisonment for two months. Revision petitioner shall surrender in the court below on 5.12.2008 to receive sentence. Bail bond is cancelled. Crl.M.P. No.2427 of 2001 shall stand cancelled. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.509/2001 4 Thomas P.Joseph, J. Crl.R.P.No.509 of 2001 ORDER 3rd October, 2008