IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 Crl.Rev.Pet.No. 4575 of 2006() ------------------------------ CRA.592/2005 of II ADDL. SESSIONS COURT, PALAKKAD ST.1537/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------------------------- V.MUSTHAFA, AGED 40 YEARS, S/O. HAMSA HAJI, VARAMANGALATHU VEEDU, KALLADIPATTA POST, PATTAMBI VIA, PALAKKAD. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------- 1. K.SHIBU, AGED 45 YEARS, S/O. BHASKARAN, KARIPPOTTIL VEEDU P.O., SHORNUR, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.A.CHACKO FOR R1 R2 BY P.P. SRI C.S.HRITHIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 4575 OF 2006 ---------------------------------------- Dated 25th Day of January, 2010 ORDER This Crl.R.P is preferred by accused who faced the charge under section 138 of the Negotiable Instruments Act. The Trial court by judgment dated 26.11.2005, convicted him under section 138 of the N.I.Act and directed to pay a sum of Rs.2,50,000/-to the complainant as compensation under section 357(3) Cr.P.C. The default sentence was fixed as simple imprisonment for two months. Aggrieved by the above conviction and sentence, the accused/revision petitioner filed Crl.A.No.592/2005 before the II Addl. Sessions Court, Palakkad which was disposed of by the Addl.Sessions Judge-II, confirming the conviction but with certain modification with respect to the sentence and accordingly, the sentence was reduced to imprisonment for one month and the revision petitioner was granted two months' time to pay the amount of CRL.R.P.4575/06 -:2:- compensation from the date of the judgment. It is the above judgment sought to be revised in this revision. 2. The case of the complainant was that the accused borrowed a sum of Rs.2,50,000/- from the complainant on 14 .2.2003 and towards the discharge of the said liability, a cheque dated 14.6.2003 was issued which was dishonoured when presented for collection. Thus, according to the complainant, the accused has committed the offence punishable under section 138 of the N.I.Act. On the basis of the complaint, S.T.No.1537 of 2003 was instituted in the Judicial First Class Magistrate's Court, Pattambi. During the trial, complainant himself was examined as PW1 and marked Exts.P1 to P6 from the side of the complainant. No evidence, either documentary or oral, was adduced by the defence. The revision petitioner/accused contended that he had borrowed only Rs.50,000/- by issuing cheque and stamp paper. According to him, he had repaid the amount, but the cheque and the stamp paper entrusted with the CRL.R.P.4575/06 -:3:- complainant were not returned and thus the present case was instituted misusing such cheque. 3. The trial court as well as the lower appellate court after evaluating the evidence on record, found that the revision petitioner/accused is guilty of the offence punishable under section 138 of the N.I.Act. No legal question was raised before the trial court or in the lower appellate court and, consequently, there is no question of law to be considered in this revision. From the available records, it appears that the complainant has established his case in the trial court beyond reasonable doubt and the same was confirmed by the lower appellate court. 4. I find no reason to interfere with the judgments of the courts below as there is no merit in the Revision. 5. However, the learned counsel appearing for the revision petitioner submitted tha in the matter of sentence a lenient view may be taken. The trial court though sentenced the revision petitioner to undergo simple imprisonment for 5 months and to pay an amount of CRL.R.P.4575/06 -:4:- Rs.2,50,000/-, in appeal, the lower appellate court while confirming the conviction, modified the sentence and, accordingly, the sentence was reduced to simple imprisonment for one month. As indicated above, the revision petitioner/accused had admitted the transaction but according to him, he had received only Rs.50,000/- which was already given back to the complainant. 6. Having regard to the facts and circumstances involved in the case, I am of the view that certain modifications can be made with respect to the sentence and also the amount ordered as compensation. Accordingly, the revision petitioner/accused is sentenced to simple imprisonment till the rising of the court and the amount awarded as compensation is enhanced and refixed as Rs.2,65,000/-(Two lakhs and sixty five thousand only). Thus, the revision petitioner is directed to appear before the trial court on 27.2.2010 to receive the sentence and to make the payment. On failure of the revision petitioner to appear and to pay the compensation CRL.R.P.4575/06 -:5:- as directed above, the Magistrate can proceed to procure the presence of the revision petitioner/accused to execute the sentence. The default sentence will continue as two months' simple imprisonment. The Crl.R.P is dismissed confirming the conviction but with modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.4575/06 -:6:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..