IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 604 of 2001() ----------------------------- CC.201/1996 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA CRA.132/1997 of ADDL.SESSIONS COURT, THODUPUZHA .................... REVN. PETITIONER(S): --------------------- BENNY S/O. AUGUSTHY, MODOOR HOUSE, UDUMBANNOOR KARA, UDUMBANNOOR VILLAGE. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. 2. JOSE, S/O. JOSEPH, THOTTUPATTU HOUSE, KARIMANNOOR KARA, KARIMANNOR VILLAGE, THODUPUZHA TALUK. BY P.P SRI. K.S. SIVAKUMAR ADV. SRI.P.V.SANTHOSH FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------- Crl.R.P No. 604 of 2001 -------------------------- Dated this the 22nd day of July, 2009 ORDER The conviction and sentence passed against revision petitioner under Section 138 of the Negotiable Instruments Act are challenged in this revision. He was convicted and sentenced to undergo Simple Imprisonment for 4 months and to pay a fine of Rs.5,000/- and in default simple imprisonment for one month under Section 138 of Negotiable Instruments Act ("N.I. Act" for short) by the Magistrate Court and in appeal, the conviction and sentence were confirmed. 2. According to prosecution, accused borrowed an amount of Rs.65,000/- from the complainant (second respondent herein) and when he demanded money, issued Ext.P1 cheque drawn on account of State Bank of India for the discharge of the said debt. The cheque on presentation was returned with endorsement "Insufficient Fund". Thereafter, a lawyer notice was issued to the revision petitioner, which he refused to receive. It was returned Crl. R.P. No.604 of 2001 2 and revision petitioner did not pay any amount. Thereafter, the complaint was filed under Section 138 of N.I. Act. 3. To prove the prosecution case, PW1 was examined and Exts.P1 to P5 were marked. The accused marked DW1 to DW 5 on his side. Both the courts below concurrently found that evidence of PW1 would establish that Ext.P1 cheque was drawn by accused for the discharge of amount due to the complainant. It was held that the complainant borrowed Rs.65,000/- and towards payment of the said amount Ext.P1 was issued and even after sending notice, Ext.P3 appellant failed to return the cheque amount. 4. Learned counsel for the revision petitioner argued that the court had proceeded on the ground that accused admitted execution of the cheque. In fact, the case of the accused was that he gave a blank cheque as a security and such cheque was filled up and misused by the complainant. A suggestion was also made to PW1 to this effect in clear and cogent terms. Therefore, the Court committed error in proceeding as though there is an Crl. R.P. No.604 of 2001 3 admission of execution of cheque by accused, it is argued. 5. On going through records and evidence of PW1, it can be seen that nothing is brought out to discredit evidence of PW1. The court below also found that accused could not probabilise his case that the cheque was a blank one and that it was handed over as security. It was also held that petitioner has taken up a wrong plea and it is rejected. I do not find any reason to interfere in those findings, since those are consistent with the evidence adduced in this case. 6. On going through the impugned judgment, I also find any perversity in the findings of the lower court in entering a conviction against the accused. However, learned counsel for the accused submitted that sentence may be reduced. The petitioner is prepared to compensate the complainant and the sentence may be reduced, that is submitted. 7. On going through the records and on considering facts and circumstances of the case, I find that the complainant can be compensated for the loss and the Crl. R.P. No.604 of 2001 4 sentence can be modified. Hence, while confirming conviction passed against the revision petitioner for offence under Section 138 of N.I Act, sentence is modified as follows: (1) The revision petitioner is sentenced to undergo imprisonment till rising of Court; and (2) He shall also pay a compensation of Rs.65,000/- to PW1 as compensation under Section 357 (3) Cr.P.C. If such amount is not paid, he will undergo simple imprisonment for 5 months. This revision petition is partly allowed. Sd/- K.HEMA JUDGE kkms/ /True copy/ P.A to Judge