IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.Rev.Pet.No. 3615 of 2009() ------------------------------ CRA.265/2009 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM ST.1226/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER: APPELLANT ------------------------------ JAIMON JOSEPH, KOLLAMALA, RESIDING AT MADATHAKKATTU HOUSE, BRAHMAPURAM KARA, PUTHENCRUZ. BY ADV. SRI.BHARATH.M. RESPONDENTS: RESPONDENTS -------------------------- 1. ABRAHAM GEORGE, S/O. GEORGE, MALIPPURATHU HOUSE, MEEMPARA.P.O, PUTHENCRUZ. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3615 of 2009 ---------------------------------------- Dated this the 20th day of November, 2009 ORDER The revision petitioner was convicted by the Judicial Magistrate of the First Class, Kolanchery in S.T.No.1226 of 2005 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for five months and ordered to pay Rs.40,000/- as compensation to the first respondent who was the complainant. Aggrieved by the conviction and sentence, Criminal Appeal No.265 of 2009 was preferred. Additional Sessions Judge, (Adhoc-I), Ernakulam by judgment dated 18/9/2009 dismissed the appeal. Now this revision. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent who was examined as PW.1 had succeeded to establish that the revision petitioner had borrowed a sum of Rs.50,000/- from the first respondent and in discharge of the said liability, Ext.P1 cheque dated 27/1/2005 for the said amount drawn on Federal Bank Limited, Puthendruz branch was Crl.R.P.No.3615 of 2009 2 issued and that when Ext.P1 was sent for collection through Union Bank of India, Poothrukka Branch it was returned dishonoured for insufficiency of funds as evidenced by Exts.P2 and P3 memo and intimation. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P4 was issued. Despite the acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. The revision petitioner took up a defence that when he availed a loan from one Joy, Ext.P1 cheque was issued as a security and that he had no transaction with the first respondent. However, he did not care to adduce any evidence in support of his defence. It is also pertinent to note that, to the notice demanding discharge of the liability, no reply was caused. The silence of the revision petitioner after acknowledging the notice demanding discharge would show that in fact, the revision petitioner had no good defence and that defence urged at the time of evidence is the result of an afterthought. The defence urged is not at all substantiated. It remains to be a suggestion. The result is that the evidence of PW.1 supported by Ext.P1 and legal presumptions under Sections 118 and 139 of the Negotiable Crl.R.P.No.3615 of 2009 3 Instruments Act that Ext.P1 was drawn for valuable consideration and delivered to the first respondent in discharge of the liability remains uncontroverted. Courts below had correctly appreciated the evidence. I find no reason to interfere with the conviction under challenge. 3. Taking into account that the revision petitioner has no permanent source of income, I find that he is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with compensation as ordered by the trial court and confirmed in appeal would meet the ends of justice. 4. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the court. The order to pay compensation is sustained. In default to pay compensation, the revision petitioner shall undergo simple imprisonment for four months. The revision petitioner is granted five months time to pay the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.