IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.Rev.Pet.No. 3458 of 2009() ------------------------------ CRA.196/2009 of ADDL.SESSIONS COURT (AD HOC - III), NORTH PARAVUR CC.1793/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- SIYAD KOKER, KOKERS FILMS, 40/7902, BAVAS COLONY, PULLEPADY, KOCHI-35. BY ADV. SRI.K.ANAND RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.J.MATHEWS, KATTUPARAMBIL HOUSE, PERIYAR GARDEN, GCDA ROAD, THOTTAKATTUKARA, ALUVA. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3458 of 2009 ---------------------------------------- Dated this the 6th day of November, 2009 ORDER The revision petitioner was convicted by the Judicial Magistrate of the First Class-I, Aluva in C.C.No.1793 of 2004 on his file for offence under Section 138 of Negotiable Instruments Act and sentenced to simple imprisonment for one year with direction to pay Rupees fifteen lakhs, the cheque amount as compensation to the first respondent. In Criminal Appeal No.196 of 2009, the conviction and sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent had succeeded to establish that the revision petitioner who is involved in film industry, owed a sum of Rupees fifteen lakhs to the first respondent and in discharge of the said liability, Ext.P1 cheque dated 20/4/2004 drawn on Catholic Syrian Bank, Kochi Branch was issued and that when Ext.P1 cheque was sent for collection through Federal Bank, Crl.R.P.No.3458 of 2009 2 Thottakattukara Branch, it was returned dishonoured for insufficiency of funds, as evidenced by Exts.P2 and P3 memos dated 21/4/2004 and 22/4/2004. Though a notice dated 28/4/2004, demanding discharge of liability was caused and it was acknowledged by the revision petitioner as evidenced by Ext.P6, the liability was not discharged. Neither there is any reply. The revision petitioner took up a defence that while borrowing Rs.5,00,000/- from one Mathew, a blank cheque was given as security, and utilising that cheque, the prosecution was launched. But regarding that no evidence was let in. The failure to respond to the notice demanding discharge of liability would indicate that in fact, the revision petitioner had no good defence at that time and the defence now advanced is the result of an after thought. He had also challenged the means of the first respondent to part with the amount said to have been lent. In support of the defence version, two witnesses were examined as DWs.1 and 2. The case of the first respondent is that his wife had obtained a sum of Rs.60,00,000/- in Land Acquisition case and borrowed money from Karim and Shaiju. DW.1 had deposed that he who was PWD contractor had borrowed Rs.7,00,000/- Crl.R.P.No.3458 of 2009 3 from the 1st respondent in 2003 and it was repaid in March, 2004. DW.2 had deposed that he who is a wholesaler in fruits had given Rs.8,00,000/- to the 1st respondent in March, 2004. The transaction alleged in this case is in April, 2004. Thus the evidence of revision petitioner itself would support the case of the first respondent regarding the means. In the above circumstance, there is little material to conclude that the 1st respondent got Ext.P1 cheque in any manner other than what was deposed by PW.1. The means to lent the amount, the liability, issuance of cheque, dishonouring of cheque and demand to clear the liability is proved by the testimony of PW.1. I find that the courts below had rightly arrived a conclusion that the first respondent had succeeded to establish the offence alleged. The evidence of PW.1 is really supported by the defence evidence also. Hence, I find that the conviction under challenge is based on cogent evidence and requires no interference. 3. Taking note that the transaction alleged is relating to the film industry and that due to reasons beyond the control of the revision petitioner, he could not pay the amount and he was forced to face the prosecution, I find that the revision petitioner Crl.R.P.No.3458 of 2009 4 is entitled to leniency in sentence and that a sentence of imprisonment till rising of the court with direction to pay the compensation would meet the ends of justice. 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. The revision petitioner shall pay Rupees Fifteen lakhs as compensation to the first respondent. In the event of failure, the revision petitioner shall undergo simple imprisonment for six months. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by him will remain in force. Registry may address the Commissioner of Income Tax to verify whether Income tax returns of PW.1, DWs.1 and 2 reflected the transactions as deposed in this case. P.S.GOPINATHAN, JUDGE Skj.