IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 Crl.Rev.Pet.No. 55 of 2001 ---------------------------------- CRA.91/1998 OF THE ADDL.SESSIONS COURT, PARAVUR CC.287/1996 OF THE JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- A.S.VISWAMBARAN, KOTTAYIL HOUSE, S/O.SREEDHARAN NAIR, NELLADU KARA, NEZHUVANNUR VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------- 1. DINESH, S/O.RAGHAVAN NAIR, PUTHUSSERY HOUSE, IYMURI KARA, KOOVAPADY VILLAGE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.K.VINOD CHANDRAN R2 BY PUBLIC PROSECUTOR SRI.T.K.VIPINDAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------------------- Crl.R.P.No.55 of 2001-C ------------------------------------------ Dated, this the 24th day of February, 2009 ORDER Revision petitioner is the accused in C.C.No.287 of 1996 on the file of the Judicial First Class Magistrate, Perumbavoor. The first respondent herein prosecuted the revision petitioner before the trial court for offence under Section 138 of the Negotiable Instruments Act with an allegation that a sum of Rs.32,000/- was due to the first respondent from the revision petitioner and that in discharge of the liability Ext.P1 cheque dated 29.9.1995 drawn on District Co-operative Bank, Pattimattom branch was issued and that when Ext.P1 was sent for collection through State Bank of Travancore, Perumbavoor branch, it was returned bounced for insufficiency of funds along with Ext.P2 memo dated 19.10.1995 and that it was intimated to the first respondent by his Bank along with intimation memo dated 26.10.1995 and that demanding discharge of liability a notice dated 6.11.1995 copy of which is marked as Ext.P4 was issued. Ext.P5 is the postal receipt. Despite the receipt of the notice on 16.11.1995 as evidenced by Ext.P6, the revision petitioner did not discharge the liability. Crl.R.P.No.55 of 2001 2. The first respondent lodged the complaint on 19.2.1996. Taking cognizance, the learned Magistrate issued process to the revision petitioner responding to which he entered appearance. After furnishing the copy of the complaint particulars of the offence were read over and explained to the first respondent to which he pleaded not guilty. Hence he was sent for trial. 3. The first respondent was examined as P.W.1 and Exts.P1 to P7 were marked. After closing the evidence the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He put forward a defence that only a sum of Rs.2000/- was due. On the side of the revision petitioner D.W.1, an advocate was examined and Exts.D1 and D2 were marked. 4. The learned Magistrate on appraisal of the evidence arrived a conclusion of guilty. Consequently, the revision petitioner was convicted and sentenced to undergo rigorous imprisonment for six months. 5. Assailing that conviction and sentence, Crl.Appeal No.91 of 1998 was preferred before the Additional Sessions Judge, N.Parur. The learned Sessions Judge on Crl.R.P.No.55 of 2001 reappraisal of the evidence arrived at a finding that there is no reason to interfere with the conviction and sentence. Consequently, the appeal was dismissed. 6. Challenging the legality, propriety and correctness of the concurrent findings of the courts below, this revision petition was filed. 7. The point that arises for consideration is: whether the conviction and sentence are vitiated by any illegality, impropriety or error so as to interfere in exercise of the revisional powers. 8. The point:- Execution of Ext.P1 cheque was admitted. But the contention is that only a sum of Rs.2000/- was due. It is in support of such a plea Ext.D2 was relied upon. Ext.P7 is the original of Ext.D2. Ext.P7 would show that in fact, a sum of Rs.32000/- was due to the first respondent from the revision petitioner. In Ext.D2, at one line, instead of Rs.32000/- it was mentioned as Rs.2000/-. It appears that it is a mischief by the photostat. However, since Ext.P7 is the original agreement I am afraid to give any reliance to Ext.D2. Ext.P7 would support the evidence of P.W.1 that a sum of Rs.32000/- was actually due and it is in discharge of that Crl.R.P.No.55 of 2001 liability Ext.P1 cheque was issued. The evidence of P.W.1 is corroborated by the legal presumptions under Section 118 and Section 139 of the Negotiable Instruments Act. The revision petitioner could not rebut the legal presumptions. 9. The very case of the first respondent is that intimating dishonouring of the cheque a notice was caused on 6.11.1995, copy of which is marked as Ext.P4 and that it was acknowledged by the revision petitioner on 16.11.1995. There is no case that any reply was caused. Had there been no liability as contended in Ext.P4, the revision petitioner should have responded to the notice. The silence of the revision petitioner after acknowledging the notice also would support the case of the first respondent. On going through the entire evidence on record I find that the courts below had correctly appreciated the evidence and there is no material to interfere with the concurrent findings of the courts below that Ext.P1 was issued in discharge of the liability. 10. Exts.P2 and P3 memo would show that Ext.P1 was dishonoured for insufficiency of funds. There is no case for the revision petitioner that Ext.P1 was dishonoured for any reason other than insufficiency of funds or that he had got Crl.R.P.No.55 of 2001 sufficient amount in the account to discharge the liability. So the courts below were justified in arriving at the conclusion that Ext.P1 was dishonoured for insufficiency of funds. 11. Ext.P4 dated 6.11.1995 and Ext.P6 acknowledgement card would show that demanding discharge of the liability a notice as contemplated was caused by the first respondent and it was acknowledged by the revision petitioner on 16.11.1995. The revision petitioner has no case that he had discharged the liability. So the first respondent was justified in launching the prosecution. The prosecution launched on 19.2.1996 is also within the time limit prescribed. I find little reason to interfere with the conclusion of guilty arrived at by the courts below. The revision petitioner was convicted for sufficient materials and there is no room for any interference in conviction. 12. Learned counsel for the revision petitioner submitted that the revision petitioner is ailing. But there is no supporting proof. However, it is seen that the trial court has awarded rigorous imprisonment for six months and no compensation was awarded to the first respondent. It appears that poverty persuaded the revision petitioner to face Crl.R.P.No.55 of 2001 prosecution. In the circumstances I find that it would be just and proper to modify the sentence and I am of the opinion that imprisonment till rising of the court with a direction to the revision petitioner to pay a compensation of Rs.32000/- to the first respondent would meet the ends of justice. The point is answered accordingly. 13. In the result, the revision petition is allowed in part. The conviction under challenge is confirmed. The sentence awarded is reduced to imprisonment till rising of the court. The revision petitioner is directed to pay a sum of Rs.32000/- as compensation to the first respondent within two months from day. The trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE vns