IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3409 of 2009() ------------------------------ CRA.740/2007 of III ADDL.SESSIONS COURT, KOLLAM CC.1056/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- M.M.SHAH S/O. MOHAMMED HANEEFA, A.M.HOUSE, MALAMEL, PERUMANOOR.P.O. VALAKOM-KOLLAM. BY ADV. SRI.S.RAJEEV RESPONDENTS: COMPLAINANT/STATE -------------------------------- 1. SHIBU.K.K S/O. KRIPAKARAN, KEEZHATHIL VEEDU, THEVARTHOTTAM THADIKKADU.P.O. ANCHAL-KOLLAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3409 of 2009 ---------------------------------------- Dated this the 25th day of November, 2009 ORDER The revision petitioner was convicted by the Judicial Magistrate of the First Class-I, Punalur in C.C.No.1056 of 2005 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for four months. He was further ordered to pay Rs.75,000/- as compensation to the first respondent, the complainant before the lower court as compensation under Section 357(3) of the Code of Criminal Procedure. In Criminal Appeal No.740 of 2007, the conviction was confirmed. The substantive sentence was reduced to imprisonment till rising of the court. The order to pay compensation with default sentence was sustained. 2. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was preferred. 3. 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 supported by Exts.P1 to P6 had succeeded to establish that the revision petitioner owed a sum of Rs.75,000/- to the first respondent and Crl.R.P.No.3409 of 2009 2 in discharge of the said liability Ext.P1 cheque dated 16/8/2005 for the said amount drawn on UCO Bank, Arakkal Branch was issued and that when Ext.P1 cheque was sent for collection through Arakkal Co-operative Bank it was returned dishonoured for insufficiency of funds as evidenced by Ext.P2 memo and Ext.P3 intimation letter dated 24/8/2005 and 20/10/2005 respectively. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P6 was caused. Despite the acknowledgment of the notice as evidenced by Ext.P5, the liability was not discharged. The revision petitioner took up a defence that he had borrowed only a lesser amount and that it was discharged. Other than the suggestion, there is no evidence in support of the defence plea. He didn't care to adduce any evidence. It is pertinent to note that the revision petitioner did not care to respond to the lawyer notice demanding discharge of the liability. According to the learned counsel for the revision petitioner, there is difference in the signature in the acknowledgment card. But no material was brought out to show that the notice was addressed to some one else. There is no material to conclude that the postman who delivered the letter Crl.R.P.No.3409 of 2009 3 had served to a wrong person. So it is be presumed that the notice was duly served to the revision petitioner who is the addressee. In the above circumstances, argument advanced by the learned counsel is not acceptable. The courts below had concurrently found that there is service of notice. Before launching the prosecution, the first respondent had complied with the statutory requirements. The evidence of PW.1 supported by Ext.P1 and legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act that Ext.P1 was drawn for valuable consideration and delivered to the first respondent in discharge of the liability remains uncontroverted. There is nothing to show that the liability is lesser than the amount shown in the cheque or that it was otherwise discharged. There is no sufficient material to conclude that the courts below had gone wrong in appreciating the evidence. There is no illegality, error or impropriety in arriving the conclusion of guilt and conviction. The conviction under challenge is unassailable. 4. The appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court. Even if it is erred, it is only towards leniency. The order to pay Crl.R.P.No.3409 of 2009 4 compensation is quite appropriate. I find no reason to interfere with the sentence also. In the result, the revision petition is dismissed. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by the revision petitioner shall remain in force. The amount, if any, deposited by the revision petitioner before the trial court shall be given credit. P.S.GOPINATHAN, JUDGE skj.