IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3787 of 2009() ------------------------------ CRA.165/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1160/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------- JINCE SEBASTINE, THUNDATHIL HOUSE, CHETHIMATTAM, PALA P.O. BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. 2. S.M.MANI, S/O.MUTHUSWAMY, MUTHU NIVAS, MUDAVOOR P.O., MUVATTUPUZHA. PUBLIC PROSECUTOR MR. RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/12/2009 AND THE COURT ON THE SAME DAYPASSED THE FOLLOWING: P.S.GOPINATHAN, J. ====================== Crl.R.P. No. 3787 of 2009 ====================== Dated this the 4th day of December, 2009. O R D E R Revision petitioner was convicted by the Judicial Magistrate of First Class Muvattupuzha for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months and to pay Rs. 50,000/- as compensation to the 2nd respondent who was the complainant before the trial court. In Criminal Appeal No. 165/09 the conviction and sentence were confirmed. Now this revision. 2. The only contention that was advanced is that the revision petitioner had no transaction with the 2nd respondent and that the cheque in dispute was issued to one Asokan, with whom the revision petitioner had a vehicle transaction, to make out a balance consideration of Rs.50,000/-. It is curious to note that though such a contention was advanced, no supporting evidence was let in. In effect, the defence suggestion remains to be suggestion, with no supporting evidence. It was argued by the learned counsel for the revision petitioner that in the witness box, the 2nd Crl.R.P. No. 3787 of 2009 2 respondent could not identify the revision petitioner, when he was standing outside the accused box. According to the learned counsel, therefore the delivery of cheque was not established. Hence the revision petitioner is entitled to an order of acquittal. In support of the evidence of the second respondent as PW1 that the revision petitioner delivered the cheque to the 2nd respondent, PW2, an independent witness was also examined. The courts below had concurrently believed the testimony of PW1 and PW2 regarding the delivery of cheque. That being the evidence, the failure of the 2nd respondent to identify the revision petitioner who was standing out side of the accused box is not relevant. It appears that the defence lawyer played a ploy by keeping the revision petitioner out of box and asking to identify from among those present in the court. It is not disputed that there was no frequent contact or transaction between the revision petitioner and 2nd respondent. In that event, if the 2nd respondent could not identify the revision petitioner who was standing outside the accused box, it is of little consequence. It is also pertinent to note that the revision petitioner didn't care to send any reply to the notice demanding discharge of the liability. If the defence now advanced is true, he should have retorted to the notice. It is also pertinent to note that the cheque in dispute was drawn for arranging a sum of Rs.50,000/-,which is the cheque amount. Though the revision petitioner had advanced a case that the liability for which the Crl.R.P. No. 3787 of 2009 3 cheque was delivered was discharged, there is no bit of document. No oral evidence was adduced to that effect. The revision petitioner didn't dare to enter the witness box and to substantiate his defence. There is nothing to show that the 2nd respondent got Ext.P1, in any manner other than what was deposed PW1. Such being the materials on record, I fail to find any error, illegality or impropriety committed by the courts below in believing the testimony of PWs. 1 and 2 supported by Exts.P1 to P6 and coming to a conclusion that Ext.P1 was delivered in discharge of the liability and it was dishonoured for insufficient funds and despite the notice demanding discharge of liability, no payment was made. There is compliance of the statutory requirements. I find that the courts below had concurrently arrived a conclusion of guilt by correctly appreciating the evidence. There is no reason to interfere with the conviction under challenge. 3. Taking in to account that the revision petitioner, though in his thirties, is a man without any avocation and that a vehicle transaction had put him into troubles, I find that he is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with order to pay compensation as ordered by the trial court and confirmed in appeal would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced imprisonment till rising Crl.R.P. No. 3787 of 2009 4 of the court. The revision petitioner shall pay Rs. 50,000/- as compensation under Section 357 (3) of Code of Criminal Procedure to the 2nd respondent. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for four months. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE. mns