IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 387 of 2001(C) ------------------------------ CRA.40/1999 of SESSIONS COURT, KOLLAM CC NO.564/1995 OF MUNSIFF MAGISTRATE OF PARAVUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- JEROME, S/O.SEBASTIAN, HOUSE NO.48, SANTHINAGAR, POLAYATHODU, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: --------------- 1. ANGEL ALBIN, S/O.MARIYAN ALBIN, ANGEL DALE, NORTH OF ADIKKAU, ERAVIPURAM, KOLLAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI AMJAD ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.387 of 2001 -------------------------------------- Dated this the 18th day of December, 2008. ORDER First respondent though served, remain absent. There is no representation. I heard counsel for revision petitioner and Public Prosecutor. 2. Following points arise for consideration:- I. Whether revision petitioner issued the cheque in question for discharge of legally recoverable debt/liability? II. Whether sentence is excessive? 3. Perused records. 4. Point No.I. According to the first respondent, himself and revision petitioner were thick friends and while so on 17.11.1991 revision petitioner requested a loan of Rupees One lakh from him for purchasing a building. First respondent wanted a witness for the transaction and accordingly, they met at the office of Catholic Press, Kollam where, first respondent advanced Crl.R.P.No.387/2001 2 Rs.84,700/- to the revision petitioner who, in turn issued four cheques for discharge of the debt. Those cheques were dishonoured for insufficiency of funds and inspite of dishonour intimation and demand, revision petitioner did not pay the amount. According to the first respondent, Ext.P1 is one among those four cheques and alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'), first respondent initiated proceeding against revision petitioner in the court of learned Munsiff-Magistrate, Paravoor as C.C.No.564 of 1995. Learned Munsiff-Magistrate found revision petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.20,000/-. In appeal, though conviction was confirmed, sentence of imprisonment alone was modified as rigorous imprisonment for six months. Hence this revision. 5. It is contended by learned counsel for revision petitioner that conviction of revision petitioner is not legal and proper and that due execution of the cheque is not proved. It is contended by learned counsel that the courts below were not justified in drawing presumption under Section 139 of the Act. There is no dispute before me that the cheque in question was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand for payment, amount was not paid. Only contention raised is that due execution of the cheque is not proved. First respondent gave evidence as PW1 and testified his case. Contention of the revision petitioner is that he had taken only Rs.5,000/- as loan from the first respondent and happened to give signed blank Crl.R.P.No.387/2001 3 cheques as security. Though when the first respondent was in the box an attempt was made to show that the cheque was not filled up by the revision petitioner, first respondent denied that suggestion and asserted that the cheque was filled by the revision petitioner in his presence. Nothing is brought out to disbelieve that version. It is also revealed that revision petitioner did not respond to the notice served on him. In these circumstances courts below were justified in finding in favour of due execution of the cheque. Revision petitioner has not rebutted the presumption appearing against him under Section 139 of the Act. Legality of recoverability of the amount is proved by the evidence of first respondent. Conviction does not require interference. 6. Point No.II. Learned counsel contended that sentence is excessive. According to learned counsel, revision petitioner has already undergone imprisonment in other cases relating to the remaining cheques. In the facts and circumstances of the case, I am satisfied that simple imprisonment till rising of the court and compensation of Rs.20,000/- are sufficient in the ends of justice. Resultantly, this revision petitioner is allowed in part in the following lines:- i. Substantive sentence imposed on the revision petitioner is modified as simple imprisonment till rising of the court. ii. Revision petitioner is directed to deposit in the trial court Rs.20,000/- (Rupees Twenty thousand only) for payment to the first respondent by way of compensation within three months from this day failing which he shall undergo simple imprisonment for one month. Crl.R.P.No.387/2001 4 iii. It is made clear that it will be sufficient compliance of direction in clause (ii) if revision petitioner paid the amount of compensation to the first respondent through his counsel in the trial court and the first respondent filed a statement through his counsel in the trial court acknowledging receipt of compensation within the said period of three months. iv. Revision petitioner shall surrender in the trial court on 23.3.2009 to receive the sentence. Bail bond is cancelled. Crl.M.P.No.1740 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.387/2001 5 Thomas P.Joseph, J. Crl.R.P.No.387 of 2001 ORDER 18th December, 2008