IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 Crl.Rev.Pet.No. 514 of 2002() ------------------------------------0--- CRA.4/2002 of ADDL. SESSIONS COURT, ALAPPUZHA CC.37/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------------------------------------------------- V.J.VARGHESE(PROPRIETOR,MATHA MATS), VELIMPARAMBIL VEEDU,PATHIRAPPALLY,ALAPPUZHA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------------------------------- 1. MUHAMMED YOUSAFF ALIAS A.M.YOUSUFF, PROPRIETOR, SOUTHERN COIR TRADING COMPANY, ALAPPUZHA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM PUBLIC PROSECUTOR SRI.AMJAD ALI ADV. SRI.B.N.SHIVSANKAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 514 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2008 Order Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.1 herein. The trial court found the petitioner guilty and convicted and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for one month. In appeal the learned Sessions Judge while confirming the order of conviction, modified and reduced the sentence to simple imprisonment for 3 months. It was further directed that the accused shall pay a sum of Rs.60,000/- to the complainant as compensation. 2. The case of the complainant before the trial court was that the accused had purchased coir worth Rs.59, 089/- from him for the purpose of his coir factory at Pathirappally in the name and style of 'Matha Mats'. The accused had issued Ext.P1 cheque dated May 10, 1997 in discharge of the said liability. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the petitioner. Though a statutory demand notice was issued by the complainant, the liability was not discharged The accused did not even bother to send a reply to the said notice. 3. The complainant was examined as Pw.1 before the trial court and Exts.P1 to P5 were marked on his side. There was no oral or documentary evidence on the side of the accused. The defence set up by the accused appeared to be that he had issued Ext.P1 cheque as security in connection with a business transaction between him and the complainant. 4. The courts below have concurrently held that Ext.P1 cheque was Crl.RP.514/2002. 2 issued by the accused in discharge of a legally enforceable liability. In other words, the courts below have discarded the untenable contentions raised by the accused. 5. Having heard learned counsel for the petitioner and the complainant and having carefully perused the materials available on record, I do not find any reason to interfere with the concurrent finding of guilty entered by the courts below. 6. As rightly noticed by the courts below, the accused had no case that he had not issued Ext.P1 cheque. He had admitted his signature in the cheque. He had also admitted the transaction between him and the complainant. Though he contended that Ext.P1 cheque was issued as security, he had not bothered to adduce any evidence, either oral or documentary, to substantiate the above contention. In my view, the accused had to discharge the burden cast on him under Section 139 of the Act, which he failed to do. Similarly the complainant was entitled to the benefit of presumption available under Section 118 of the Act. 7. Having regard to the entire facts and circumstances I am satisfied that the courts below were justified in holding the petitioner guilty. But it is submitted by the learned counsel for the petitioner that some leniency may be shown in the matter of sentence. It is pointed out by the learned counsel for the complainant that the liability had arisen way back in the year 1997. The amount has remained unpaid for more than a decade. 8. In the peculiar facts and circumstances I am satisfied that substantive sentence of imprisonment for 3 months can be substituted with imprisonment till the rising of the court. Petitioner shall however pay the amount of compensation as directed by the appellate court, to be paid to the complainant under Section 357(3) of the Code. Ordered accordingly. 9. Petitioner shall appear before the trial court on August 22, 2008 Crl.RP.514/2002. 3 and remit the amount of compensation on that day. On his appearance the learned Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court . If the petitioner fails to appear and remit the amount of compensation, the sentence imposed on him by the appellate court shall stand confirmed. Crl.RP is disposed of in the above terms. A.K. BASHEER Judge an.