IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.Rev.Pet.No. 1881 of 2009(A) -------------------------------------------- CRL.A.NO.740/2006 OF ADDL. SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM. ST.NO.296/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -VIII, THIRUVANANTHAPURAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- A.MAHEENKHAN, SHAJI COTTAGE, T.C.47/1369, CORE VIEW, POONTHURA, THIRUVANANTHAPURAM. BY ADV. MR.K.S.MOHAMED HASHIM. RESPONDENTS: ------------------------ 1. SHAMNAD, KUZHIKKAKATHU VILA VEEDU, KEEZHKOTTA, VATTAVILA P.O., AMARAVILA, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY MR.K.R.B.KAIMAL, SENIOR ADVOCATE, ADVS. MR.ANIL K.NAIR, MR.V.MADHUSUDHANAN. R2 BY PUBLIC PROSECUTOR MR. RITHWIK. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S. GOPINATHAN, J. -------------------------------- CRL.R.P. NO. 1881 OF 2009 ------------------------------------- DATED THIS THE 5TH DAY OF OCTOBER 2009 O R D E R -------------- The Revision Petitioner is the accused in ST No.296 of 2006 on the file of the Judicial Magistrate of the First Class-VIII, Thiruvananthapuram. The first respondent herein prosecuted the Revision Petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate after due trial arrived a conclusion of guilty. Consequently the Revision Petitioner was convicted and sentenced to Simple Imprisonment for one month with direction to pay Rs. 50,000/- as compensation to the first respondent. In default of payment of compensation, the revision petitioner was ordered to undergo Simple Imprisonment for a further period of one month. Though he preferred CRL.R.P. NO. 1881 OF 2009 2 Criminal appeal No.740 of 2006 before the Sessions Judge, Thiruvananthapuram, he was unsuccessful. Assailing the correctness, legality and propriety of the above conviction and sentence as confirmed in appeal, this revision is filed. 2. Heard the learned counsel for the revision petitioner and perused the judgments of the courts below. 3. The first respondent who was examined as PW1 supported by Exts.P1 to P6 had succeeded to establish that the revision petitioner owed to a sum of Rs. 50,000/- to the first respondent and that in discharge of the said liability, Ext.P1 cheque dated 26-6-2003 drawn on Thiruvananthapuram District Co-operative Bank was issued and that when Ext.P1 cheque was presented for collection, it was bounced for insufficiency of funds. Demanding discharge of the liability a lawyer notice, copy of which is marked as Ext.P3 dated 29-9-2003 was CRL.R.P. NO. 1881 OF 2009 3 caused. Despite the acknowledgment of the notice as evidenced by Ext.P5, the liability was not discharged. But the revision petitioner sent a reply stating that he did not owe any money to the 1st respondent. Whereas the cheque in dispute was issued to a police constable by name Aboobacker. In support of the said plea, the revision petitioner himself was examined as DW1. But the trial court did not believe him. Whereas PW1 was believed. 4. The evidence of PW1 that Ext.P1 cheque was received by him in discharge of the liability is further corroborated by the legal presumption under section 139 of the Negotiable Instruments Act. The evidence of DW1 is not sufficient to discredit PW1 or to rebut the legal presumption under section 139 of the Negotiable Instruments Act. In the light of the evidence of PW1 supported by Exts.P1 to P5, the trial court was justified CRL.R.P. NO. 1881 OF 2009 4 in disbelieving DW1. I find no error or illegality or impropriety committed by the trial court in analysing the evidence. The conviction is based upon cogent evidence. 5. As regards the sentence, the learned Counsel for the Petitioner would argue that the revision petitioner is a heart patient who had already undergone a heart surgery and that he is aged 52 years. In the above circumstances I find that regarding sentence the revision petitioner is entitled to a little more leniency and that a sentence of imprisonment till raising of the court would meet the ends of justice. The direction to pay compensation is quite appropriate. In default of payment of compensation, the revision petitioner shall undergo Simple Imprisonment for 3 months. The revision petitioner is granted time till 31-1-2010 for payment of compensation provided he executes a bond for CRL.R.P. NO. 1881 OF 2009 5 Rs. 15,000/- with two solvent sureties each for like sum to the satisfaction of the trial court. P.S. GOPINATHAN JUDGE pkk