IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.Rev.Pet.No. 1765 of 2002(C) ------------------------------ CRA.101/2001 of SESSIONS COURT, KOTTAYAM CC.136/1998 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: ----------------------------------------------- KANNAN, S/O. BHASKARAN NAIR, MANAGING PARTNER, AKASH HOME APPLIANCES, MARKET ROAD, CHANGANACHERRY, KOTTAYAM. BY ADV. SRI.G.SUKUMARA MENON RESPONDENTS: RESPONDENTS/COMPLAINANTS: ----------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.T. VARGHESE, S/O. M.V. THOMAS MANAGING PARTNER, M/S. KENS AGENCIES, VIJAYAPURAM BUILDINGS, K.K. ROAD, KOTTAYAM. R1 BY PUBLIC PROSECUTOR, SRI.C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1765 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April 2008 ORDER Petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.2 herein. 2. The trial court found the petitioner guilty and he was accordingly convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for three more months. It was directed that the fine amount, if recovered, shall be paid to the complainant as compensation. 3. In appeal, the above order of conviction and sentence was confirmed by the Sessions Court. 4. The case of the complainant before the trial court was that the accused had issued Exts.P1 and P2 cheques for Rs.25,000/- and Rs.30,000/- respectively in discharge of a legally enforceable debt. But when the cheques were presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand notice issued by the Crl.R.P.No.1765 OF 2002 :: 2 :: complainant did not evoke any response. Hence the complaint. 5. The complainant was examined as PW1 and Exts.P1 to P4 were marked on his side. There was no oral and documentary evidence on the side of the accused. 6. The defence set up by the accused was that he happened to issue two cheques in connection with some business transaction and that there was no legally recoverable debt or liability as alleged by the complainant. But as rightly noticed by the courts below, the accused had totally failed to substantiate the above contention. 7. Having heard learned counsel for the petitioner and having perused the materials available on record, I do not find any material illegality or irregularity in the order impugned. In my view, the courts below were justified in holding the petitioner guilty under Section 138 of the Act. Therefore, the order of conviction is liable to be confirmed. I do so. 8. At this stage, learned counsel submits that the petitioner has already deposited 50% of the cheque amount before the trial court as directed by this court on January 6, 2003. He further Crl.R.P.No.1765 OF 2002 :: 3 :: submits that the petitioner is prepared to remit the balance amount. In that view of the matter, I am satisfied that some leniency can be shown to the petitioner in the matter of substantive sentence. Therefore, while confirming the order of conviction it is directed that the petitioner shall suffer imprisonment till the rising of the court and remit a sum of Rs.60,000/- as compensation before the trial court. If the petitioner has already deposited 50% of the cheque amount, he shall remit the balance sum on his appearance before the trial court on August 14, 2008. On his appearance, the learned Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court on that day. The amount of compensation shall be released to the complainant. If the petitioner fails to appear and remit the amount, the substantive sentence imposed on him by the appellate court shall stand confirmed. (A.K.BASHEER, JUDGE) jes