IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1669 of 2006() ------------------------------ CRA.757/2003 of ADDL. SESSIONS COURT (FAST TRACK NO.II ADHOC), THRISSUR ST.2519/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- SUKUMARAN, AGED 46, S/O.ACHUTHAN, VARISSERY, P.VEMBALLUR, S.N.PURAM, KODUNGALLUR. BY ADV. SMT.P.R.REENA RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE -------------------------------------------------------------------------------- 1. SUBRAMANIAN, AGED 57, S/O.MAMAN, VIYYATH HOUSE, P.O.VEMBALLUR, S.N.PURAM, KODUNGALLUR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR R1 BY ADV. SRI.T.M.CHANDRAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1669 of 2006 ORDER ON CRL.MA. NO.4632/2006 IN CRL.RP. NO.1669/2006 DISMISSED 11/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 1669 OF 2006 --------------------------------- Dated this the 11th day of December, 2008 ORDER This revision is preferred against the judgment in Crl. Appeal No. 757/03 of the Addl. Sessions Judge, Thrissur (Fast Track Court No. 11- Adhoc). The said appeal arose against the judgment of the Judicial Magistrate of First Class, Kodungallur in S.T. 2519/99. The trial court found the accused guilty under Section 138 of Negotiable Instruments Act and sentenced him to undergo Simple Imprisonment for 15 days and to pay an amount of Rs. 60,000/- as compensation and in default to undergo Simple Imprisonment for three months. In appeal the appellate court reduced the sentence to one day that is till the rising of the court and enhanced the compensation to Rs. 84,000/- and in default to undergo Simple Imprisonment for one month. It is against that decision the present revision is filed. 2. Heard the learned counsel for the revision petitioner. It is the case of the complainant that the revision petitioner had borrowed an amount of Rs. 60,000/- and towards the discharge of the liability had issued a cheque which when presented for Crl. R.P.No. 1669/2006 -2- encashment was returned for insufficiency of funds. In spite of notice the amount was not paid and so action launched under Section 138 of N.I Act. The evidence consisted of the oral testimonies of PW1 and Dws.1 to 3 and Exts. P1 to P5 were marked. Both the courts below analysed the evidence tendered in the case. It has come out in evidence that the revision petitioner is the neighbour and he had made request for money prior to one month before actually giving it. According to him he had raised the funds and had handed over the amount. On the other hand revision petitioner would contend that he and the complainant jointly conducted a Kuri and Kuri amount was to be given to the son of one Saidu and as there was no money the appellant entrusted a cheque to the complainant. The complainant misused that cheque for initiating the action. The courts below analysed the evidence of DWs. 1 to 3 and came to the conclusion that they are not acceptable. It is also pointed out that though a notice was received, no reply was sent and therefore both the courts below found that the evidence is sufficient to prove the execution of Ext. P1 and there is nothing in the form of rebuttal evidence to discharge the same. I do not find any perversity, illegality or Crl. R.P.No. 1669/2006 -3- irregularity and so the finding of guilt under Section 138 is to be sustained and I do so. 3. The learned counsel for the revision petitioner pleads before me that the appellate court was harsh when it directed the revision petitioner to pay Rs. 84,000/- as compensation where as the trial court has directed to Rs. 60,000/- to be paid. I feel the appellate court has shown leniency by reducing the sentence and could have at least retained the same amount to be paid so that justice is met. Therefore I am inclined to reduce the amount from Rs. 84,000/- to Rs. 60,000/- but convert it to that of fine so that on realization it can be disbursed to the complainant. In the result the Criminal Revision Petition is disposed of as follows: 1. The conviction under section 138 of Negotiable Instruments Act is sustained. 2. The sentence is modified and the revision petitioner is directed to undergo Simple Imprisonment till the rising of the court and to pay a fine of Rs. 60,000/- which on realization shall be disbursed to the complainant and in default, revision petitioner shall undergo Simple Imprisonment for 15 days. Crl. R.P.No. 1669/2006 -4- 3. The revision petitioner shall present himself before the trial court to receive the sentence and to pay the fine on 16.3.2009, failing which the trial court shall execute the sentence. 4. If any amount is paid or deposited it can be treated as a part of the fine and balance need be deposited. The amount deposited shall be disbursed to the complainant on proper application. The Crl. Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm