IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1664 of 2006() ------------------------------ CRA.578/2004 of II ADDL. SESSIONS COURT, PALAKKAD CC.501/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVISION PETITIONER(S):APPELLANT: ACCUSED: ---------------------------------------------------------------------------- P.V.KRISHNAN,S/O.K.VENKITACHALAM, BEHIND THONDER CONGRESS OFFICE, VENKITANARAYANA ROAD,T.NAGAR,CHENNAI-17. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT(S): 1ST RESPONDENT:COMPLAINANT: -------------------------------------------------------------------------------- 1. N.N.SUNDARA RAMAN, S/O.N.S.N.MOORTHY IYER, BIG HOUSE,NELLISSERY,VADAKKANTHARA, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.BALAGOPAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== Crl.R.P. No.1664 OF 2006 ===================== Dated this the 15th day of December 2008 O R D E R This revision petition is preferred against the judgment of the Sessions Court, Palakkad in Crl.A.No.578 of 2004. The said appeal was against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in CC No.501 of 2002. The complaint was initiated under Section 138 of the NI Act and the trial court found the accused guilty and convicted him to undergo simple imprisonment for 6 months and to pay a compensation of Rs.90,000/- and in default to undergo simple imprisonment for a period of three months. It is against that decision the present revision is filed. 2. Heard the counsel on both sides. It is the case of the complainant that the revision petitioner purchased a maruti car from him and towards the purchase value of the car, he had issued Ext.P1 cheque which when presented for encashment, was returned with the endorsement 'insufficiency of funds'. A notice had been issued to him and as no payment was made the action has been initiated under Section 138 of the NI Act. Crl.R.P.No.1664/2006 -:2:- 3. The defence appears to be that the car was handed for the purpose of conducting business and that no cheque as alleged had been issued. In the trial court, PW1 was examined and Exts.P1 to P6 were marked. The trial court found that the complainant had sold the maruti car with the promise of the accused that he will pay the sale consideration later. In spite of repeated demands, the accused failed to pay the amount and on 29.4.2001 the accused came to his house and issued Ext.P1 cheque dated 13.5.2001 for Rs.87,000/-. When it was presented for encashment, it was returned with the endorsement 'insufficiency of funds'. Thereafter notice was served and the postal acknowledgment is marked as Ext.P5. The case of the defence is that the cheque in question came to the hands of the complainant during the joint business of the complainant along with him was not accepted by the court. The court analyzed the evidence of PW1 and accepted the same. The court also found that there were no material contradictions or striking improbabilities and therefore it accepted the evidence of PW1 regarding execution and that it is towards the discharge of liability. It also drew the presumption under Section 139. There is no rebuttal evidence and therefore the court ultimately convicted and sentenced the revision petitioner. The appellate court has reappreciated the evidence and arrived at a decision that the decision rendered by the trial Crl.R.P.No.1664/2006 -:3:- court is just and proper. I do not find any illegality, irregularity or perversity to interfere with the said conviction and therefore I sustain the conviction under Section 138 of the NI Act. So far as sentence is concerned, the trial court has sentenced the accused to undergo simple imprisonment for six months and to pay a compensation of Rs.90,000/-. Learned counsel for the petitioner prays for leniency and reduction of compensation. No reduction is necessary because the cheque in question is for Rs.87,000/- and I modify the sentence to undergo imprisonment for one day, i.e. till the raising of the court and convert the compensation into that of fine which on realisation be disbursed the complainant. In the result, the revision petition is disposed of as follows:(1) The conviction under Section 138 is sustained.(2) The sentence is modified and the petitioner is directed to undergo simple imprisonment for a day, i.e. till the raising of the court and to pay a fine of Rs.90,000/- which on realisation shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for six weeks.(3) The revision petitioner shall present himself before the trial court for receiving sentence and for making payment of fine on 16.3.2009. (4) In case of failure to be present, the trial court shall execute the sentence. (5)If any amount is Crl.R.P.No.1664/2006 -:4:- deposited as compensation, it shall be converted into fine and balance need be deposited and the amount in deposit shall be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-