IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4585 of 2006(C) --------------------------------------- CRA.288/2005 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1136/2001 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------- M.K. SOMAN, KYTTATH HOUSE, POOCHACKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.R.DIVAKARAN RESPONDENT(S)/RESPONDENT: COMPLAINANT ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KOLUTHARA SALES AND SERVICE IOC PUMP, KALOOR JUNCTION, COCHIN-17, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.P. GEORGE. ADV. SRI.PEARSON S.FERNANDEZ FOR R2 PUBLIC PROSECUTOR THOMAS JOHN AMBOOKEN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 4585 OF 2006 = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Ernakulam in Crl.A.288/05. That appeal was preferred against the conviction and sentence passed in C.C.1136/01 by the Judicial First Class Magistrate- I, Kochi. It was a prosecution u/s 138 of the N.I. Act and the trial court found the accused guilty and convicted him and sentenced him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1,00,000/- u/s 357(3)Cr.P.C. and in default to undergo a further imprisonment for three months. In appeal the appellate court sustained the conviction but reduced the imprisonment to one till the raising of the Court and to pay a compensation of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of two months. It is against that decision the present revision is preferred. CRIMINAL.R.P. NO. 4585 OF 2006 -:2:- 2. At the out set I may like to point out that the scope of revisional jurisdiction is restricted and the revisional Court is not expected to re-appreciate the evidence and enter into another finding. What is to be done by the revisional Court is to peruse the records and find out whether there is any illegality, irregularity or perversity committed by the Courts below in arriving at that decision. 3. It is the case of the complainant that the revision petitioner while an employee of the complainant/company collected certain dues from the customers and did not remit it to the company. On detection the accused in part payment of dues issued a cheque for Rs.1,00,000/-. The cheque when presented for encashment was returned with endorsement of payment stopped and thereafter statutory requirements were complied with. The defence of the accused appears to be that by forceful threat three signed blank cheques had been obtained and this has been used for the purpose of filing the case. CRIMINAL.R.P. NO. 4585 OF 2006 -:3:- 4. The appellate court found that in Ext.P6 reply notice the revision petitioner admitted that he did owe money to the complainant which he has collected from 22 customers and as the company was wound up he was unable to remit the amount to the company and get receipts. Though he preferred a complaint before the police with respect to the forceful obtainment of cheques it has not seen the light of the day and no follow up action is seen taken. The Courts below appraised the evidence of PWs.1 to 3 as well as DWs.1 to 3, considered the documentary evidence, Exts.P1 to P8 and D1 to D6 and arrived at a decision that the evidence adduced on behalf of the complainant establishes the execution of the cheque and that it was done so towards the discharge of the liability which on proof of execution draws a presumption u/s 139 of the N.I. Act that it is issued towards the discharge of the liability. When there is a candid admission by the accused himself in Ext.P6 reply notice regarding his liability to pay the amount, then certainly the matter has to be probed into to find out whether there is any vitiating circumstances that would go against the case of the CRIMINAL.R.P. NO. 4585 OF 2006 -:4:- complainant. As stated by me earlier both the Courts have evaluated the materials and had arrived at a decision which one cannot find fault with and it is not vitiated by illegality, irregularity or perversity. Therefore I do not find any ground to disturb the conviction granted u/s 138. 5. So far as the sentence is concerned this is a fit case where the imposition of compensation can be converted into that of fine which on payment shall be disbursed to the complainant. Therefore the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.1,00,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of one month. CRIMINAL.R.P. NO. 4585 OF 2006 -:5:- (4) The revision petitioner shall appear himself before the trial court to receive the sentence and for payment of fine on 16.2.2009 failing which the trial court is directed to execute the sentence. (5) If any amount has been deposited by way of compensation it can be treated as part of fine amount and only the balance need to be deposited and it shall be disbursed to the complainant on proper application. M.N. KRISHNAN, JUDGE. ul/-