IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 3316 of 2009() ------------------------------ CRA.369/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.188/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II,MAVELIKKARA .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- THAMPAN THOMAS, S/O.MATHAI THOMAS, ANJILIVILAYIL PUTHENVEEDU, VARENIKKAL EAST, THEKKEKARA P.O., MAVELIKKARA. BY ADV. SRI.K.MADHUSOODANAN NAIR RESPONDENTS: RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. C.PRASAD S/O.RAMACHANDRAN PILLAI, C.P.HOUSE, PEROOR KARAZHMA, CHARUMOODU, MAVELIKKARA. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3316 of 2009 ---------------------------------------- Dated this the 30th day of October, 2009 ORDER The revision petitioner is the accused in S.T.No.188 of 2008 on the file of the Judicial Magistrate of the First Class-II, Mavelikara. The second respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after due trial, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for six months. He was further directed to pay Rs.1,00,000/- as compensation, to the second respondent under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation, he shall undergo simple imprisonment for a further period of six months. In appeal, Additional Sessions Judge-I, Mavelikara, confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the conviction and sentence, as confirmed in appeal, this revision petition was filed. Crl.R.P.No.3316 of 2009 2 2. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the second respondent, who was examined as P.W.1, supported by Exts.P1 to P6, had succeeded to establish that the revision petitioner owed a sum of Rs.1,00,000/- to the second respondent and in discharge of the said liability, Ext.P1 cheque dated 27/1/2006 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Ext.P3 memo. Though a lawyer notice, copy of which was marked as Ext.P5, was caused demanding discharge of the liability and it was acknowledged by the revision petitioner as evidenced by Ext.P6, the liability was not discharged. Neither any reply. The revision petitioner took a defence that he borrowed Rs.10,000/- only and the blank cheque was given as security. But no supporting evidence was let in. Therefore, the evidence of PW1, which is supported by the legal presumption under Section 118 and 139 remains uncontroverted. The silence of the revision petitioner after acknowledging the notice also looms large. I find little material to interfere with the concurrent findings of the courts below. Conviction is Crl.R.P.No.3316 of 2009 3 unassailable. 3. It is submitted by the learned counsel for the revision petitioner that the revision petitioner is suffering from dementia and that failure in business constrained to him to face the prosecution. Having taken into account the peculiar circumstances of the case, I find that a sentence of fine of Rupees one lakh would meet the ends of justice. 4. In the result, the revision petition is allowed in part. While confirming the conviction under challenge, the sentence is reduced to a fine of Rupees one lakh. In default of payment of fine the revision petitioner shall undergo simple imprisonment for six months. The revision petitioner is granted six months time for remitting the fine. If fine is realized, it shall be paid to the second respondent as compensation under Section 357(1) of Code of Criminal Procedure. P.S.GOPINATHAN, JUDGE skj.