IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Crl.Rev.Pet.No. 89 of 2004(A) ----------------------------- CRA.439/2002 OF SESSIONS COURT, KOTTAYAM ST.123/1997 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANOOR .................... REVISION PETITIONER/APPELLANT/ACCUSED. ------------------------------------ PIOUS JOHN, KUNNASSERIL HOUSE, KADUTHURUTHY P.O., KOTTAYAM DISTRICT. BY ADV. SRI.JOHN VARGHESE RESPONDENTS/COMPLAINANT AND STATE. ----------------------------------- 1. THOMAS JOHN, KUDUMBAKUZHIYIL VEEDU, KOODALLOOR P.O., KOTTAYAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.N.N.ELAYATH R2 BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = Crl.R.P.No.89 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of July, 2008. O R D E R 1.The revision petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act on count that Ext.P2 cheque issued by him to the complainant for an amount of Rs.1,70,000/- was dishonoured for insufficiency of funds and the accused failed to pay on being intimated about the dishonour. 2.In his defence, the accused with the evidence of D.W.1 attempted to establish that the cheque was issued under coercion. To constitute coercion, the necessary elements have to be established. The courts below have concurrently noticed that the evidence of D.W.1 is only to the effect that he did not even enter the room where the accused was allegedly detained or coerced. Not only that, CRRP89/2004 -: 2 :- as noticed by the courts below, a searching cross examination of P.W.2, the complainant, did not also lead to any material in favour of the accused. Under the aforesaid circumstances, the findings of the courts below are correct and do not call for any interference under Section 397 Crl.P.C. 3.The learned counsel for the revision petitioner, however, strenuously argued that this is a case where the court may take a lenient view on the question of sentence, particularly because the accused and the complainant are near relatives. 4.Having regard to the totality of the facts and circumstances, in modification of the sentence imposed by the courts below, it is ordered that: i.The revision is allowed in part. ii.The finding of guilt and the conviction are confirmed. CRRP89/2004 -: 3 :- iii.The sentence imposed by the courts below on the revision petitioner is vacated. In supersession thereof, the revision petitioner/accused is sentenced: (a)to undergo imprisonment till rising of the court, for a day; and (b)to pay fine of Rs.1,70,000/-, in default of which, he shall undergo simple imprisonment for a period of one month. Any amount already deposited in terms of the interim orders will be given due credit to against the fine. iv.The fine, if paid or realized, shall be treated as compensation payable to the complainant and shall be released accordingly. CRRP89/2004 -: 4 :- The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed. The revision petitioner shall appear and his sureties shall produce him before the court below on 21-8-2008 to suffer the sentence. Needless to say, the learned Magistrate shall take necessary action against the revision petitioner and his sureties under Section 446 Crl.P.C., if he does not appear as directed above. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/180708