IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 Crl.Rev.Pet.No. 2982 of 2009() ------------------------------ CRA.175/2009 of ADDL.SESSIONS JUDGE (AD HOC-III), N.PARAVUR ST.1300/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER: --------------------- C.P.MATHACHAN, AGED 40, S/O.PAULO,CHEERAKATTIL HOUSE, KURUMASSERY P.O., KURUMASSERY. BY ADV. SRI.JAISON JOSEPH RESPONDENTS: --------------- 1. M/S.MOOZHIKULAM CHIT FUNDS, MOOZHIKULAM, REP.BY ITS MANAGING PARTNER, JOSE MATHEW, KOLUVAN HOUSE, MOOZHIKULAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.2982 of 2009 ---------------------------------------- Dated this the 29th day of September, 2009 ORDER The revision petitioner is the accused in S.T.No.1300 of 2005 on the file of the Judicial Magistrate of the First Class-I, Aluva. The first respondent herein prosecuted the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act. The trial court after due trial arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted for offence under section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for 3 months and to pay Rs.25,000/- as compensation to the first respondent with a default clause to under go simple imprisonment for 60 days. 2. Aggrieved by the above conviction and sentence Criminal Appeal No.175 of 2009 was filed. The learned Additional Sessions Judge (Adhoc) III, North Paravur, to whom the appeal was made over, confirmed the conviction. The sentence was modified to one for simple imprisonment Crl.R.P.No.2982 of 2009 2 for 3 months and a fine of Rs.25,000/- with default clause to under go imprisonment for one month. The direction to pay compensation was set aside. The fine amount was ordered to be paid to the first respondent. 3. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. 4. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent through the testimony of PW1, supported by Exts.P1 to P7 had succeeded to establish that out of a chitty transaction the revision petitioner owed a sum of Rs.24,815/- to the 1st respondent and in discharge of the said liability Ext.P2 cheque dated 2/8/04 drawn on State Bank of India, Moozhikkulam Branch was issued and that when sent for collection it was dishonoured for insufficiency of funds as evidenced by Exts.P3 and P4 memos dated 2/9/2004. Demanding discharge of the liability, a lawyer notice dated 4/9/04, copy of which was marked as Ext.P5 was issued. Despite the acknowledgment of notice as evidenced by Ext.P7, the liability was not discharged. The concurrent findings of guilt is Crl.R.P.No.2982 of 2009 3 based on cogent evidence and I find no reason to interfere with the conviction. Having regard to the fact that Ext.P2 cheque was issued in discharge of the liability arising out of a Chitty transaction and that the financial difficulties had constrained the revision petitioner to face the prosecution. I find that regarding sentence, the revision petitioner is entitled to leniency and imprisonment till rising of the court with fine of Rs.25,000/- would meet the ends of justice. 5. In the result, the revision petition is allowed in part. The conviction under challenge is confirmed. The substantive sentence is reduced to imprisonment till rising of the court with fine of Rs.25,000/-. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months. Fine, if realized shall be paid to the 1st respondent. The revision petitioner is granted five months time for payment of fine provided he executes a bond for Rs.10,000/- (Rupees ten thousand only) with 2 solvent sureties each for like sum to the satisfaction of the trial court within 15 days. P.S.GOPINATHAN, JUDGE Skj.