IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 3330 of 2009 ---------------------------------------- CRL.A.NO.434/2007 OF III ADDL.SESSIONS COURT, KOLLAM, CC.NO.1/2004 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SANTHOSH, S/O.SIVANANDAN, KOLLERAZHIKATHU VEEDU, NJARACKAL, ANCHALUMMOODU, PERINADU P.O, KOLLAM DISTRICT. BY ADV. MR.B.MOHANLAL. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. VEENADHARAN.N., PUTHETHU VEEDU, NADUVILA CHERRY, KANJAVELI, THRIKKARUVA, KOLLAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. MR.S.SUDHEESHKAR, R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S. GOPINATHAN, J. -------------------------- CRL. R.P. NO. 3330 OF 2009 -------------------------------- DATED THIS THE 27TH DAY OF OCTOBER 2009 O R D E R The revision is the accused in C.C No. 1 of 2004 on the file of the Judicial Magistrate of First Class-1, Kollam. The first respondent herein prosecuted the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act. The revision petitioner pleaded not guilty. Hence he was sent for trial. The 1st respondent was examined as PW1 and Exts.P1 to P6 were marked on his side. When questioned under section 313 of the Cr.PC, the revision petitioner took a defence that his father had borrowed a sum of Rs. 25,000/- and a blank cheque was given as security. The father of the revision petitioner was examined as DW1. The lower court on appraisal of the evidence believed PW1 and disbelieved DW1. Consequently revision petitioner was found guilty and sentenced to simple imprisonment for six months with order to pay Rs.Two lakhs as compensation to the first respondent under section 357(3) of the Cr.PC. In default of payment, he was ordered to undergo simple imprisonment for 2 months. In Crl.Appeal No. 434 of 2007 the CRL. R.P. NO. 3330 OF 2009 2 3rd Additional Sessions Judge to whom the appeal was made over confirmed the conviction and sentence by judgment dated 31-1- 2008. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal this revision petition was preferred. 2. Heard the learned counsel appearing for the revision petitioner and perused the judgments of the courts below. The first respondent who was examined as PW1 supported by Exts.P1 to P6 succeeded to establish that the revision petitioner owed a sum of Rs. Two lakhs and in discharge of the said liability Ext.P1 cheque dated 11-11-2003 drawn on Corporation Bank, Thrikkanuva Branch was issued and that when Ext.P1 was sent for collection on 27-11-2003 through Kollam District Co-operative Bank it was dishonoured for insufficiency of funds as revealed from Exts.P2 and P3, memo and intimation respectively dated 30-4-2007. Demanding discharge of liability a lawyer notice dated 30-4-2007, copy of which is marked as Ext.P4, was caused. Despite the acknowledgment of the notice as evidenced by Ext.P6 the liability was not discharged. The evidence of PW1 CRL. R.P. NO. 3330 OF 2009 3 that the revision petitioner owed a sum of Rs. two lakhs is supported by Ext.P1 and the legal presumptions under sections 118 and 139 of the Negotiable Instruments Act that Ext.P1 was issued for valuable consideration and delivered in discharge of the liability. The evidence of DW1 is not at all sufficient enough to controvert the evidence of PW1 or to rebut the legal presumptions. The courts below rightly disbelieved DW1 and believed PW1. I find no error, illegality or impropriety in the findings of the courts below. The conviction under challenge is unassailable. 3. Having regard to the fact that revision petitioner is an auto driver and his financial difficulties led him to face the prosecution, I find that he deserves a little leniency in sentence and that imprisonment till rising of the court and Rs.Two lakhs as compensation to the 1st respondent would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the court. Revision petitioner shall pay CRL. R.P. NO. 3330 OF 2009 4 Rs. two lakhs as compensation to the first respondent under section 357(3) of Cr.PC. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for a period of six months. The revision petitioner is granted six months time for payment of compensation. The bail bond executed by the revision petitioner will remain in force till then. P.S. GOPINATHAN JUDGE pkk