IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Crl.Rev.Pet.No. 3160 of 2003(A) --------------------------------------------- CRA.NO.407/2001 of SESSIONS COURT, KOTTAYAM ST.NO. 650/1999 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S)/ APPELLANT/ACCUSED -------------------------------------------------------------------- K.HARIKRISHNAN, S/O. KUTTAPPAN NAIR, KARTHIKA HOUSE, KATTAKKADA.P.O., NOW RESIDING AT S.S.MANSION, WELLINGDON ROAD, OPP.RICHMOUNT TOWN.P.O., BANGALORE-25 BY ADV. SRI.BABY THOMAS SRI.GIGIMON ISSAC SRI.ROJO J.THURUTHIPARA RESPONDENT(S)/ RESPONDENTS/COMPLAINANT AND NOT PARTY ------------------------------------------------------------------------------------------------- 1. SANTHOSH THOMAS, KIZHEKKTHITTATHIL HOUSE, PANACHIPARA, POONJAR, ERATTUPETTA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J. ----------------------------------------- Crl.R.P.No. 3160 of 2003 ----------------------------------------- Dated this the 1th day of August, 2011 ORDER Revision petitioner is the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short N.I.Act, concurrently by the two inferior courts below. The trial Magistrate on his conviction sentenced him to under go simple imprisonment for three months and to pay compensation of Rs.25,000/- to the complainant. Confirming such conviction and sentence, without any modification, the learned Sessions Judge turned down the appeal of the accused. Feeling aggrieved, the accused has preferred this revision. 2. Notice was given to the complainant, but, he has elected to remain absent. 3. I heard the learned counsel for the petitioner/accused. 4. Due execution of the cheques, three in number for a total sum of Rs.4,00,000/-, convincing and credible evidence to prove that such cheques had been issued towards discharge of debt or liability to the complainant from the accused, have not been proved in the case, is a submission of the learned counsel Crl.R.P.No. 3160 of 2003 2 to assail the conviction rendered against the accused concurrently by the two courts below. The accused had disputed the prosecution case alleged by the complainant contending that the cheque had been given as security to a financial concern and the instrument had been misused through the complainant for launching the prosecution against him after presentation of such instrument and getting it dishonored, is the submission of the counsel. Both courts have failed to appreciate his defence in the perspective with reference to the principles applicable for considering whether an offence under Section 138 of the N.I Act has been made out against the accused, is the further submission made. 5. Going through the judgments rendered by the courts below, I find the submissions made by the learned counsel for the accused to assail his conviction is prima facie unacceptable. Other than taking a plea that he has no transaction with the accused and the cheque was handed over to a financial concern he did not let in any evidence to prove his defence nor point out any circumstance even to show that such defence is probable. Notice on dishonour of the cheque Crl.R.P.No. 3160 of 2003 3 intimating its dishonour, demanding the sum covered by instrument, was returned unclaimed. He has no case that such notice was not issued in the address to which postal articles are received by him. The evidence of the complainant who was examined as PW1 was found trustworthy and reliable to the learned Magistrate. That was also so found by the learned Sessions Judge who had the opportunity to re-appreciate the evidence in appeal. The accused had no dispute over the signature appearing in the instrument. Other than contending that the cheque was handed over to another, he did not substantiate that plea, persuaded both courts, on the materials placed, to conclude that the evidence tendered by the complainant established the guilt of the accused. I do not find any impropriety in the finding of the guilt so rendered against the accused by the two courts concurrently. 6. The dishonour of the cheque by itself cannot be taken as circumstance to impose a prison term against the drawer of the cheque, on its dishonour. I find that the substantive term of imprisonment imposed against accused warrants interference. Substantive term of imprisonment of three Crl.R.P.No. 3160 of 2003 4 months imposed shall stand reduced to imprisonment for a day till the rising of the court, but, with compensation of Rs.4,00,000/-, the total amount covered by the three cheques, with default term of simple imprisonment for three months. 7. Petitioner shall report before the Magistrate on 5.9.2011to serve out the substantive term of imprisonment for one day till the rising of the court and to report the payment of the compensation as fixed above. Learned Magistrate shall keep in abeyance execution of the sentence for a period of one month from today to enable the petitioner to make payment of the compensation. In default of his appearance and non payment of the compensation, Magistrate shall take appropriate steps to execute the sentence in accordance with law. Revision disposed accordingly. S.S.SATHEESACHANDRAN, JUDGE. rkc