IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 Crl.Rev.Pet.No. 107 of 2001(Y) ------------------------------------------ CC.63/1996 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR CRA.93/1998 of ADDL.SESSIONS COURT, PARAVUR .................... REVN. PETITIONER: ---------------------------- M.A.HAMSA, S/O. ABDUL KHADER, THAKKANTHEDATHU HOUSE, AROOR VILLAGE, CHANDIROOR, ALAPPUZHA DIST. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: ----------------------- 1. STATE OF KERALA REP.BY ITS SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. SHAJI, S/O. PADMANABHAN, KALATHIL VEEDU, MUNAMBAM, KUZHIPPILLY VILLAGE. ADV. SMT.K.V.BHADRA KUMARI FOR R2 BY GOVERNMENT PLEADER SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.461/2001 IN CRL.RP. NO.107/2001 DISMISSED 24.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.107 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June 2008 ORDER Petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.2 herein. The trial court found the petitioner guilty and he was convicted and sentenced to undergo simple imprisonment for one year. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence this revision petition. 2. The case of the complainant was that petitioner/accused had issued Ext.P1 cheque for Rs.27,630/- in discharge of a liability which had arisen in connection with “prawn business”. When the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued by the complainant, the liability was not discharged. In fact the accused is stated to have issued a reply notice denying the liability. Crl.R.P.No.107 OF 2001 :: 2 :: 3. The complainant was examined as PW1 and the official of the Bank was examined as PW2. Exts.P1 to P7 were marked on his side. The accused got himself examined as DW1. 4. The defence set up by the accused appeared to be that there was no legally dischargeable debt as alleged by the complainant. He contended that two blank signed cheques handed over by him to the complainant as security in connection with the prawn business were misused by the latter for launching the above prosecution. The learned Magistrate, after a careful evaluation of the oral and documentary evidence, repelled the above contention and held that the complainant had satisfactorily established his case. The above finding was upheld by the appellate court. 5. It is contended by learned counsel for the petitioner that the complainant had neither stated anything about the prawn business nor had he revealed in connection with what transaction the accused had issued the cheque. It is true that the complainant had only stated that the accused had issued the cheque in question towards discharge of a liability. But in chief examination, the complainant had given details of the business. Crl.R.P.No.107 OF 2001 :: 3 :: It was asserted by him that in connection with the business, the accused owed the sum indicated in Ext.P1 cheque and it was in discharge of that liability, Ext.P1 cheque was issued. 6. As mentioned earlier, the accused had got himself examined as DW1. In his chief examination, the accused had stated that he was doing business in prawns. He also admitted that the complainant had been supplying prawns to him at Munambham. He further stated that he used to make payment after three days of purchase. But according to the accused, he had issued two blank cheques to the complainant as security in connection with the business transaction. The accused further stated that he had to stop the business because of loss. Nevertheless, he contended that he did not owe any money to the complainant in connection with the business. 7. Having gone through the deposition of the accused carefully, I find no reason to disagree with the view taken by the courts below. In this context, it may also be noticed that in the course of his examination, the complainant had asserted that the accused had not issued any blank cheque to him and that Ext.P1 cheque was written by the accused himself in his own hand. The Crl.R.P.No.107 OF 2001 :: 4 :: said assertion had not been denied or disputed by the accused. At this juncture, it may also be noticed that in the course of cross examination, the accused had stated that he had issued two cheques to the complainant towards discharge of the liability. But his further case was that he had given another cheque as security for which he had no document. He also admitted that he had not demanded return of the cheque which he had allegedly handed over to the complainant as security. 8. Having regard to the totality of the facts and circumstances, I do not find any material illegality or irregularity in the order passed against the petitioner. At this stage, learned counsel for the petitioner submits that some leniency may be shown to the petitioner in the matter of sentence. He submits that the petitioner is prepared to discharge the liability, if some reasonable time is granted. Learned counsel for the complainant submits that the complainant is interested only in getting back the money, of course with some reasonable compensation. 9. In the above facts and circumstances, in lieu of the sentence of imprisonment for one year imposed on the petitioner, he shall undergo imprisonment till the rising of the Crl.R.P.No.107 OF 2001 :: 5 :: court, and deposits Rs.33,000/- before the trial court to be paid to the complainant as compensation under Section 357(3) of the Code of Criminal Procedure. Petitioner shall appear before the trial court on September 15, 2008. On his appearance, the learned Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court on that day. If the petitioner fails to appear and remit the amount of compensation as directed above, the sentence imposed on him by the courts below shall stand confirmed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.107 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.107 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 24th June 2008