IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.Rev.Pet.No. 3250 of 2009() --------------------------------- CRA.712/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM ST.170/2005 of THE JUDICIAL IST CLASS MAGISTRATE'S COURT- VII, THIRUVANANTHAPURAM. .............................................................................................. REVN. PETITIONER: APPELLANT ----------------------------------- RAJENDRAN NAIR S/O. MADHAVAN PILLAI, MELE IRAMATHU VEEDU VETTIKONAM, MANIKANTESWARAM PO, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.R.V.SREEJITH RESPONDENT(S): ------------------- 1.SOMASEKHARAN, PLAVILA PUTHEN VEEDU VELLAYANI, NEMOM, THIRUVANANTHAPURAM. 2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL HIGH COURT BUILDING, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. --------------------------------------------- Crl. R.P.No. 3250 of 2009 --------------------------------------------- Dated this the 19th day of October, 2009 ORDER Revision petitioner is the accused in ST.No.170/2005 on the file of the Judicial Magistrate of First Class-VII, Thiruvananthapuram. He was prosecuted by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. He pleaded not guilty to the charge. Hence he was sent for trial. The learned Magistrate, after trial, arrived a finding of guilty. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for three months with direction to pay Rs.23,000/- as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure. In default, he has to suffer simple imprisonment for three months. The Additional Sessions Judge, Adhoc-I, Thiruvananthapuram by Judgment dated 03/06/2009 in Criminal Appeal No.712/06 confirmed the conviction. Sentence was reduced to simple imprisonment for two weeks. The direction to pay compensation was sustained. Assailing the legality and propriety of the above conviction and sentence, this revision petition was filed. Crl.R.P.No.3250/2009 2 2. Having heard either side, and perusing the judgments of the Courts below; I find that the first respondent who was examined as PW1 supported by Ext.P1 to P6 had succeeded to establish that the revision petitioner borrowed a sum of Rs.20,000/- from the first respondent and in discharge of the said liability, Ext.P1 and P2 cheques dated 02/09/02 and 16/08/2002 respectively for Rs.10,000/- each were issued and that when Ext.P1 and P2 were sent for collection, the cheques were dishonoured for insufficiency of funds as evidenced by Ext.P3 and P4 memos dated 15/11/02. Demanding discharge of liability, a notice dated 19/11/02, copy of which was marked as Ext.P5 was caused. Despite the acknowledgment of notice on 26/11/2002, the liability was not discharged. The evidence of PW1 is further corroborated by presumption under Sections 118 and 139 of the Negotiable Instruments Act. The plea of the revision petitioner is one of total denial. The revision petitioner had advanced a case that ten years back he borrowed some amount from one Venugopal and issued a cheque as security. Though he paid back the amount, the cheque was not returned as he declined to pay Crl.R.P.No.3250/2009 3 more amount. He had not cared to adduce any defence evidence in support of his plea. The result is that there is no material on record to show that the first respondent obtained Ext.P1 and P2 cheques in any manner other than what was deposed by PW1. In the above circumstance the courts below had correctly appreciated the evidence and arrived a conclusion of guilt. I find no reason to interfere with the conviction entered. 3. Taking into account that the revision petitioner is a man aged 49, I find that he is entitled to leniency in sentence and that a sentence of imprisonment till rising of the Court and a fine of Rs.23,000/- with a default sentence of imprisonment for three months would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the Court and a fine of Rs.23,000/-. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months. Out of the fine amount, if Crl.R.P.No.3250/2009 4 collected, Rs.20,000/- shall be paid to the first respondent as compensation. The revision petitioner is granted four months time for payment of fine amount. Till then, the bond executed by him shall remain in force. P.S. GOPINATHAN, JUDGE SS