IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Crl.Rev.Pet.No. 785 of 2004(C) ------------------------------------------- CRA.NO. 95/2002 of SESSIONS COURT, MANJERI ST.413/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA . ................... REVN. PETITIONER(S): APELLANT/ACCUSED: ------------------------------------------------------------------- M.P. NARAYANANKUTTY, S/O. CHERIYOTTI, `PINKY NIVAS', NEAR RAILWAY GATE, ANGADIPPURAM, PERINTHALMANNA. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P. VENUGOPALAN, S/O. KESAVAN, KARKIDAMKUNNU P.O., ALANALLOOR, PALAKKAD DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU R2 BY ADV. SMT.K.V.RESHMI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.785 of 2004 --------------------------------- Dated this the 12th day of August 2011 O R D E R This revision petition is filed by the accused challenging the conviction and sentence passed against him for the offence punishable under Sec.138 of the Negotiable Instruments Act. He was sentenced by the learned Magistrate to undergo simple imprisonment for 6 months. The learned Sessions Judge confirmed the conviction and reduced the sentence to S.I. for 2 months. 2. Learned counsel for the revision petitioner would submit that the case of the accused from the very inception was that he had borrowed only Rs.90,000/- from PW1 and inclusive of interest he has to pay Rs.1,20,000/- in 12 equal monthly instalments and that out of the amount so payable, the accused has paid Rs.1,00,000/- in 10 equal instalments. According to the accused the balance amount payable was Crl.R.P. No.785 of 2004 -: 2 :- only Rs.20,000/-. It is argued by the learned counsel for the accused/revision petitioner that, it was an un-filled signed cheque leaf that was handed-over to PW1, when the amount of Rs.90,000/- was borrowed by the accused. In support of that plea, one witness was examined on the side of the accused as DW1. Learned counsel submits that the learned Magistrate did not accept the evidence given by DW1 for the simple reason that he, in evidence stated that the currency notes were not counted in his presence but was given by DW1 to the accused as a packet containing currency notes. Therefore, it was found by the learned Magistrate that the evidence of DW1 cannot help the accused to contend that what was received from PW1 was only Rs.90,000/- and not Rs.4,00,000/- as contended by the complainant. According to the complainant, the accused had borrowed Rs.4,00,000/- and it was to discharge that liability Ext.P1 was issued. Learned Magistrate found that since it was the admitted case of the accused that Ext.P1 Crl.R.P. No.785 of 2004 -: 3 :- was issued by him to PW1 to discharge the liability or as a security for the amount he had borrowed from PW1 and since there is evidence to show that the accused had borrowed money from PW1 in the absence of any better evidence, the evidence given by PW1 has to be accepted. 3. On going through the evidence of PW1, it could be found that his evidence that Ext.P1 was issued by the accused to discharge the debt of Rs.4,00,000/- could not be shattered. Even according to DW1, money was paid by PW1 to the accused on the day of handing over of Ext.P1 to PW1. No better evidence was adduced to probabilise his version that Rs.50,000/- was returned by him. In such circumstances, the courts below were perfectly justified in holding that Ext.P1 was executed by the accused in discharge of a legally enforceable debt. The contention that only Rs.90,000/- was received by him and not Rs.4,00,000/- as contended by the complainant was not accepted by the courts below. The courts below found the case of the Crl.R.P. No.785 of 2004 -: 4 :- complainant more reasonable and acceptable. Sitting in revision the concurrent finding so entered by the courts below cannot be set aside. All the statutory requirements were duly complied with. Hence the conviction is only to be confirmed. At this juncture, it is submitted by the learned counsel for the revision petitioner and the counsel appearing for the complainant/2nd respondent that the parties have talked over the matter and there was some sort of settlement that the money payable be Rs.1,00,000/- (Rupees One Lakh). Considering all the aspects, I find the sentence can be modified. 4. In supersession of the sentence awarded by the courts below, the accused/revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay Rs.1,00,000/- (Rupees One Lakh only) as compensation to the complainant and in default he will undergo S.I. for two months. The accused/revision petitioner will appear before J.F.C.M. – I, Perinthalmanna on 15.9.2011 to Crl.R.P. No.785 of 2004 -: 5 :- pay/deposit the amount of compensation and to undergo imprisonment till the rising of the court. Crl.R.P. is disposed of as above. N.K.BALAKRISHNAN, JUDGE. Jvt