IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.Rev.Pet.No. 5 of 2006(A) --------------------------- CRA.235/2005 of V ADDL.SESSIONS COURT, ERNAKULAM ST.1286/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- PAUL THOMAS, AGED 42 YEARS, M/S. PERIYAR AGENCIES, RESIDING AT KAVATTIKUNNEL HOUSE, MALAYATTOOR P.O., MALAYATTOOR. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. O.S. BOBY, AGED 39 YEARS, PROPRIETOR, M/S. ASIAN AGENCIES, PERUMBAVOOR. 2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. P.P. SRI. THOMAS JOHN AMBOOKEN. ADV. SRI.BYJU KURIAKOSE FOR R1 SRI.GEORGE SEBASTIAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 5 OF 2006 = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Ernakulam in Crl.A.235/05. That appeal was preferred against the conviction and sentence passed in S.T.1286/01 by the Judicial First Class Magistrate, Perumbavoor. The trial court convicted the revision petitioner to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- and also Rs.29,600/- u/s 357 (3) Cr.P.C. The appellate court sustained the conviction but it modified the sentence by making it one till the raising of the Court and to pay a compensation of Rs.32,000/-. It is against that decision the present revision is preferred by the accused. 2. It is the case of the complainant that the revision petitioner used to purchase cement from the complainant company and towards the purchase of the same had issued a cheque for Rs.29,600/- which when presented for Cr.R.P. 5 OF 2006 -:2:- encashment returned with endorsement insufficiency of funds. Subsequently notice was sent and on non-payment within the statutory period prosecution was started u/s 138 of the N.I. Act. The contention of the accused/revision petitioner appears to be that it was given only as a security and it is further attempted to be argued that there is nothing to show that the complainant is the proprietor of Asian Agencies. 3. Both the Courts below had considered the entire matter in detail and the revision petitioner had admitted that he used to purchase cement from M/s Asian Agencies. His version was that at the inception itself he had given a blank signed cheque as security. The courts below also appreciated the oral evidence of PW1 and DW1 and ultimately came to a conclusion that the revision petitioner had issued a cheque and it has been dishonoured and thereby he has committed the offence u/s 138 of the N.I.Act. I do not find any illegality, irregularity or perversity in arriving at the said decision. Therefore I decline to interfere with the conviction made u/s 138 of the N.I.Act.. Cr.R.P. 5 OF 2006 -:3:- 4. So far as the sentence is concerned the appellate court has shown maximum leniency and I feel this is a case where payment of compensation u/s 357(3) can be converted into one of fine and on default he can be directed to undergo imprisonment. 5. In the result the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.32,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo simple imprisonment for a period of two months. (4) The revision petitioner shall appear himself in person before the trial court to receive the sentence and also for payment of fine on 12.2.2009. In default the trial court is directed to execute the sentence. Cr.R.P. 5 OF 2006 -:4:- (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-