IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 27TH AUGUST 2010 / 5TH BHADRA 1932 Crl.Rev.Pet.No. 2563 of 2010() ------------------------------ CRA.136/2007 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.159/2005 of THE JUDL.FIRST CLASS MAGISTRATE COURT-V, NEYYATTINKARA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- ------------------------------------------------------------------ D.S.ARUN KUMAR,S/O.E.A.DANAM, AGED 39 YEARS,S.B.NIVAS,CHARUVILA,MANNOTTUKONAM, KOTTUKAL DESOM,KOTTUKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.SREEKANTH S.NAIR RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT:- ---------------------------------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. V.SASI,S/O.C.VELAYUDHAN,AGED 41 YEARS, KUNNUVILA VEEDU,MANNOTTUKONAM,KOTTUKAL DESOM, KOTTUKAL VILLAGE,THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI.BENNY VARGHESE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.2563 of 2010. = = = = = = = = = = = = Dated this the 27th day of August, 2010. O R D E R The revision petitioner was convicted by the Judicial Magistrate of the First Class-V, Neyyattinkara in CC.No.159/2005 (old case No.CC.854/2002) for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for nine months and ordered to pay Rs.2,10,000/- as compensation to the 2nd respondent, the defacto complainant. Being aggrieved, he preferred Crl.Appeal No.136/2007, but he was unsuccessful. Assailing the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the 2nd respondent who is a partner of the revision petitioner in a pharmaceutical business and who was examined as Pw1 had succeeded to establish that the Crl.R.P.No.2563 of 2010. -: 2 :- revision petitioner owed a sum of Rs.two lakhs to the 2nd respondent and in discharge of that liability Ext.P1 cheque dated 19.9.2001 was issued and that when Ext.P1 was sent for collection it was returned dishonoured with endorsement insufficient funds as evidenced by Ext.P2 memo and that despite the acknowledgement of a lawyer notice demanding discharge, the liability was not discharged. The revision petitioner took up a plea that for the smooth running of the business he used to give blank cheques and that Ext.P1 was drawn for Rs.20,000/- and that forging the figure as Rs.two lakhs, the prosecution was launched. According to the learned counsel, one of the zeros in the figure is smaller in size than the other zeros. Though it appears so, that argument merits no consideration, because in words no any such correction is seen made. The mere fact that one of the zeros in the figure happened to be a smaller one is not an indication regarding material alteration when the words written are clear and Crl.R.P.No.2563 of 2010. -: 3 :- without any overwriting or correction. It is pertinent to note that the revision petitioner remained silent after acknowledging notice demanding discharge of liability. Had the defence now urged is genuine, the revision petitioner should have retorted to the notice demanding discharge of liability. The silence of the revision petitioner after acknowledging notice demanding discharge looms large. In this set of facts, it is just and appropriate to infer that the revision petitioner, in fact, had no good defence when he acknowledged the notice and the defence now urged is one invented for argument sake and there is little merit in the contention. It is also pertinent to note that the revision petitioner had not even attempted to rebut the legal presumptions under Section 118 and 139 of the Negotiable Instruments Act in favour of the 2nd respondent that Ext.P1 was drawn for valuable consideration and issued in discharge of liability. The evidence of Pw1 supported by legal presumptions and the Crl.R.P.No.2563 of 2010. -: 4 :- documents produced remains uncontroverted. In the above circumstance, the courts below were correct in arriving at a conclusion of guilt. The conviction under challenge is unassailable. 3. Having due regard to the fact that the dispute arises out of a business transaction in between the revision petitioner and the 2nd respondent, who were partners in a business, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till the rising of the court with a fine of Rs.2,15,000/- would meet the ends of justice. 3. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court and a fine of Rs.2,15,000/- (Rupees two lakhs fifteen thousands only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for six months. The fine, if realised, Rs.2,10,000/- (Rupees two lakhs ten Crl.R.P.No.2563 of 2010. -: 5 :- thousands only) shall be paid to the 2nd respondent as compensation under Section 357(1) of the Crl.PC. The revision petitioner is granted six moths time to remit the fine. Till then, the bail bond executed by the revision petitioner shall remain in force. P.S.GOPINATHAN, (Judge) Kvs/-