IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.Rev.Pet.No. 3045 of 2009 ---------------------------------------- CRL.A.NO.633/2008 OF ADDL. DISTRICT & SESSIONS (ADHOC-III), N. PARAVUR, CC.NO.1933/2004 OF JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALUVA. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- M.M.SHEREEF, AGED 65, S/O.MAIDEENKUNJU, ROSE HOUSE, VATTAYAL WARD, ALAPPUZHA (GUNNY BAG BUSINESS, ALLEPPEY GUNNY STORE, KALLUPALAM, VADAKKEKARA, ALAPPUZHA). BY ADV. MR.JAISON JOSEPH. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. MUHAMMED BASHEER, AGED ABOUT 40, S/O.ABDUL AZIZ, NAVARANG HOUSE, THOTTAKKATUKARA, ALUVA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR. RITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = Crl.R.P.No.3045 of 2009. = = = == = = = = = = = = = = = = = = Dated this the 30th day of September, 2009. O R D E R The revision petitioner is the accused in CC.No.1933/2004 on the file of the Judicial Magistrate of the First Class-I, Aluva. The first respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after due trial, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three months. He was further directed to pay Rs.25,000/- as compensation, to the first respondent under Section 357(3) of the Criminal Procedure Code. In appeal, the Addl.Sessions Judge, (Adhoc-III), N.Paravur confirmed the conviction. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. Crl.R.P.No.3045 of 2009. -: 2 :- 2. Having heard the learned counsel for the revision petitioner and perusing the judgments impugned, I find that the first respondent, who was examined as Pw1, supported by Exts.P1 to P9, had succeeded to establish that the revision petitioner owed a sum of Rs.25,000/- to the first respondent and in discharge of that liability Ext.P1 cheque dated 1.1.2004 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Exts.P2 to P5 memos. Though a lawyer notice, copy of which was marked as Ext.P6, was caused demanding discharge of the liability and it was acknowledged by the revision petitioner as evidenced by Ext.P9, the liability was not discharged. The defence of the revision petitioner is that out of business transaction some amount was due to the first respondent and at the instance of one Koya an account was opened in Canara Bank and a blank cheque was issued as a security. It is the support of that contention DWs.1 and 2 were examined. DW2 had Crl.R.P.No.3045 of 2009. -: 3 :- even gave to the extent that the liability wad discharged. The revision petitioner has no any such case of discharge. There is no reply to the notice demanding discharge. Silence after the notice looms large. It is in the circumstance the courts below disbelieved DWs.1 and 2. The evidence of DWs.1 and 2 is not sufficient enough to rebut the legal presumption under Sec.118 and 139 of the Negotiable Instruments Act which supports the case of the first respondent. Such being the material on record, I find that the courts below had correctly appreciated the evidence and arrived a finding of guilt. There is no error, illegality or impropriety to be rectified in revision. The conviction under challenge is unassailable. 3. Regarding sentence, I find that the revision petitioner who is a senior citizen is entitled to more leniency and a sentence of imprisonment till rising of the court with a fine of Rs.25,000/- with default sentence for four months would meet the ends of justice. Crl.R.P.No.3045 of 2009. -: 4 :- 4. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court and a fine of Rs.25,000/- with default sentence of simple imprisonment for four months. Fine, if realised, shall be paid to the first respondent as compensation under Sec.357(1) of the Code of Criminal Procedure. The revision petitioner is granted six months' time for payment of fine, provided, he executes a bail bond for Rs.15,000/- (Rupees fifteen thousand only) with two solvent sureties each for like sum to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE. Kvs/-