IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 129 of 2001(A) -------------------------------------- CRA.251/1995 of I ADDL. SESSIONS COURT, TRIVANDRUM ST.552/1993 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): --------------------------------- RAJAPPAN ASARI, I.E.P. ASSEMBLY, DRAFTSMAN, KELTRON, KARAKULAM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA RESPONDENT(S): ------------------------- 1. HARIDAS, T.C.22/1006, KURIYATHI, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.R.P.No. 129/2001 ORDER ON CRL.M.P.NO. 549/2001 IN CRL.R.P.NO. 129/2001 DISMISSED. SD/- THOMAS P. JOSEPH, JUDGE 29/09/2008 /TRUE COPY/ P.A. TO JUDGE THOMAS P. JOSEPH, J. ------------------------------ CRL.R.P.No. 129 of 2001 ------------------------------ Dated this the 29th day of September, 2008 O R D E R First respondent filed complaint against the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as 'the Act'). The complaint was that revision petitioner borrowed Rs.20,000/- from him and for the discharge of that debt, issued cheque dated 2/01/1993 which was dishonoured for insufficiency of funds. Dishonour was intimated to the revision petitioner and he was called upon to make payment, but that was not done. Learned Chief Judicial Magistrate found revision petitioner guilty, convicted and sentenced him to pay a fine of Rs.40,000/-. Appeal preferred by the revision petitioner ended in dismissal. Hence this revision. 2. Heard counsel for revision petitioner and public prosecutor. First respondent and counsel remained absent. 3. It is contended by learned counsel that due execution of cheque is not proved. It is also contended that sentence imposed is CRL.R.P. No. 129/2001 2 excessive. 4. First respondent gave evidence regarding the transaction culminating in the alleged execution of Exhibit P1, Cheque. When revision petitioner was questioned under Section 313 of the Criminal Procedure Code, he conceded that he had borrowed the amount from the first respondent and issued the cheque. His contention was that he had repaid the amount, but first respondent did not return the cheque. There is no evidence to show that revision petitioner had discharged the debt and in spite of that, first respondent refused or failed to return Exhibit P1. Courts below, on the evidence on record are justified in concluding that revision petitioner committed the offence punishable under Section 138 of the Act. 5. So far as sentence is concerned, in the facts and circumstance of the case and considering the amount involved, I am satisfied that fine of Rs.25,000/- is sufficient in the ends of justice. Resultantly, revision petition is allowed in part in the following lines; 1. Sentence imposed on revision petitioner is modified as fine of CRL.R.P. No. 129/2001 3 Rs.25,000/-(Rupees twenty five thousand only) and in default of payment, to undergo simple imprisonment for two months. 2. Out of the fine if realised, Rs.22,000/-(Rupees twenty two thousand only) will be paid to first respondent as compensation. 3. Revision petitioner is granted two months time to deposit the fine in the trial court. Bail bond is cancelled. THOMAS P. JOSEPH, JUDGE scm