IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 1540 of 2010() ------------------------------ CRA.348/2008 of SESSIONS COURT, KASARAGOD CC.335/2008 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- LATHEESH BABU, S/O.LATE BALAN, DRIVER, CHEIYATHEKKEYIL HOUSE, TEMPLE GATE POST, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.V.K.VEERAVUNNY RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. P.K.PRAMOD KUMAR, AGED 40 YEARS, S/O.LATE P.KELU MASTER, JAYARAM NIVAS, NAYA BAZAR, POST UPPALA, KASARAGOD TALUK. 2. KERALA STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1540 of 2010 ------------------------------- Dated this the 18th day of May, 2010. O R D E R Challenging the judgment dated 6.12.2008 in C.C.No.335/08 in the Judicial First Class Magistrate II (Addl. Munsiff), Kasaragod, and the judgment dated 22.1.2010 in Crl.A.No.348/2008 in the Court of Session, Kasaragod, the accused in a prosecution for the offence punishable u/s.138 of the Negotiable Instruments Act, preferred this revision petition. 2. The case of the complainant is that, the revision petitioner had issued a cheque dated 26.12.2007 for a sum of Rs.2 lakhs towards the discharge of debt due to the complainant, which when presented for encashment dishonoured as there is no sufficient fund in the account, maintained by the accused. Consequently, after complying with the statutory formalities, a complaint was preferred before the trial court. During the trial, the complainant adduced his evidence consists of his oral testimony and documentary evidence, marked as Exts.P1 to P6. From the side of the Crl. R.P.No.1540 of 2010 2 defence, DW1 was examined and Ext.D1 was marked. According to the defence, the complainant was having money lending business and the accused was an agent of the complainant from the year 2000 and the money entrusted with the accused to be given to the customers as directed by the complainant. According to the defence, the complainant obtained signed blank cheques at the time of entrusting money with the accused. According to the accused, he had repaid an amount of Rs.4,00,000/- to the complainant. The trial court after considering the evidence on record found that, there was transaction between the complainant and the accused. It was also found that, Ext.P1 cheque was drawn by the accused and also found that the signature contained in Ext.P1 cheque is that of the accused, which was also not at all disputed. When the accused admitted the transaction with the complainant and the execution of the cheque and issuance of the same, it is heavily upon the accused to substantiate his plea that, he had Crl. R.P.No.1540 of 2010 3 discharged the liability. But according to the trial court, the materials produced by the accused is not sufficient to substantiate the plea of the discharge of the debt. The lower appellate court has also, after considering the entire evidence and materials, approved the finding of the trial court. In the absence of any evidence in support of the defence plea, regarding the repayment of the amount, I find no reason to interfere with the finding arrived on by the trial court as well as the appellate court. Therefore, there is no merit in the revision petition. 2. The learned counsel appearing for the revision petitioner submitted that, the revision petitioner is a tailor by profession and some time may be granted to pay the amount of compensation fixed by the trial court and also submitted that the sentence of imprisonment may be reduced. 3. Having regard to the facts and circumstances involved in the case, I am of the view that while confirming the conviction Crl. R.P.No.1540 of 2010 4 punishable u/s.138 of the NI Act against the accused/revision petitioner, some modifications can be made with respect to the sentence but that too subject to enhancement of compensation amount. With regard to the sentence, it is to be noted that the revision petitioner was the agent of the complainant and I am of the view that the sentence of imprisonment, awarded by the trial court and modified by the appellate court, can be reduced to, till raising of the court and the compensation amount can be enhanced to Rs.2,25,000/-. In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner, punishable u/s.138 of NI Act, as recorded by the trial court as well as the appellate court. The revision petitioner is sentenced to undergo imprisonment till the raising of the court and to pay a compensation of Rs.2,25,000/-. The revision petitioner is directed to appear before the trial court on 18.8.2010, to receive the sentence of imprisonment and to pay the compensation Crl. R.P.No.1540 of 2010 5 amount as refixed by this court. In case of any default in appearing before the court and paying the enhanced compensation amount, the revision petitioner is sentenced to undergo simple imprisonment for a period of 6 months. Subject to the above modification, with respect to the sentence and confirming the conviction, this revision petition is disposed of. V.K.MOHANAN, Judge. ami/