IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 2636 of 2003() ------------------------------ CRA.501/2002 of SESSIONS COURT, THRISSUR CC.266/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED. ----------------------------------------------------------- SHAJU, S/O.VARAPPAN, CHITTILAPPILLY HOUSE, PO.CHEVOOR VILLAGE,] DESOM, THRISSUR DISTRICT. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): RESPONDENTS/COMPLAINT. ------------------------------------- 1. JOSE, S/O.DEVASSY, KOMBAN HOUSE, CHEVOOR PO.,THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.A.C.DEVY FOR R1 PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.2636 of 2003 ------------------------------------- Dated this the 16th day of March, 2009 ORDER In this revision petition, the revision petitioner/accused assails a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The accused now faces a sentence of S.I for a period of 3 months. There is a further direction to pay an amount of Rs.1 lakh as compensation. In default of payment of compensation, the accused has been sentenced to undergo S.I for a further period of 3 months. 2. The cheque is for an amount of Rs.1 lakh. The signature in the cheque and handing over of the cheque are admitted. According to the complainant, the cheque was issued for the due discharge of a legally enforcible debt/liability. The complainant had allegedly sold gold ornaments to the accused. The price thereof was paid partly in cash and for the balance amount, Ext.P1 cheque was allegedly issued. That cheque when presented for encashment was dishonoured by the bank on the ground of insufficiency of funds. The complainant caused a Crl.R.P No.2636 of 2003 2 notice of demand to be issued under registered post. Intimation was served. But the addressee (the revision petitioner/accused) did not claim the notice. No payment was effected. 3. The complainant filed the complaint after observing the statutory time table scrupulously. The accused denied the offence. Thereupon the complainant examined himself as DW1 and proved Exts.P1 to P5. 4. Though the notice was not received or replied to, a contention was raised in the course of trial that the cheque was not issued for the due discharge of any legally enforcible debt/liability. It was conceded that an amount of Rs.20,000/- had been borrowed by the accused from the complainant. According to the accused, a blank signed cheque was given for the discharge of the said liability. He further contended that the entire amount of Rs.20,000/- had been discharged by sending the amount through DW2 when the accused was not available at his native place. DW2 had allegedly paid the amount, but the cheque was not returned. That cheque is being misutilised now. The accused examined himself as DW1 and the said witness as DW2. Crl.R.P No.2636 of 2003 3 5. The courts below concurrently came to the conclusion that the oral evidence of DW2 about discharge cannot be accepted. When discharge was allegedly effected, the cheque was not taken back and this is improbable, noted both the courts. Moreover even an acknowledgment/receipt was not taken for the amount of Rs.20,000/- allegedly paid to the complainant through DW2. On this aspect also, the courts found that the plea of discharge is not convincing or satisfactory. The courts below did not in the circumstances of the case accept the plea that the cheque was handed over as security and not for the due discharge of any legally enforcible debt/liability. 6. I have been taken through the evidence and the materials available. I am satisfied that the courts below committed no error in accepting and acting upon the oral evidence of PW1 and in not accepting and acting upon the oral evidence of DWs 1 and 2. I am satisfied that the evidence of PW1 along with Exts.P1 to P5 sufficiently establishes the guilt of the accused under Section 138 of the Negotiable Instruments Act. 7. A technical contention is raised that the notice of demand has not been actually served on the accused. It was Crl.R.P No.2636 of 2003 4 sent at his known address. Intimation was served at that address. If the petitioner did not take any steps to claim that registered article, he cannot be heard to contend that there was no proper notice. 8. The counsel has a grievance that the petitioner was not available at his native place and had gone to Bombay in connection with this work. Except the oral assertion of DW1, there is nothing to show that the accused was not available at his native place and was at Bombay at the relevant time. In these circumstances, the challenge raised against the sufficiency of the notice is also without merit. 9. I do not in these circumstances find any merit in the challenge raised against the verdict of guilty and conviction. 10. The counsel lastly prays that the sentence imposed may be modified and reduced. A deterrent substantive sentence for 3 months has been imposed on the petitioner. I am satisfied that leniency can be shown to the petitioner. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that the substantive sentence can be reduced at the Crl.R.P No.2636 of 2003 5 same time zealously ensuring that the victim/complainant who has been compelled to fight 3 rounds of legal battle and to wait from 2000, is adequately compensated. The revision petition can succeed only to the above extent. 11. In the result: a) This Crl.R.P is allowed in part; b) The impugned concurrent judgments are upheld in all other respects; c) But the substantive sentence of imprisonment is modified and reduced to a period of imprisonment till rising of court. It is further directed that an amount of Rs.1,10,000/- (Rupees One lakh and ten thousand only) shall be paid as compensation and in default the petitioner shall undergo S.I for a period of 3 months. If realised the entire amount shall be released to the complainant. 12. The petitioner shall have time till 30.04.2009 to raise and pay the compensation amount and avoid the default sentence. The modified sentence hereby imposed shall not be executed till that date. On or before 02.05.2009, the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-