IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 Crl.Rev.Pet.No. 1049 of 2005 ------------------------------ CC.328/2003 CHIEF JUDICIAL MAGISTRATIE, KOTTAYAM CR.A. 454/2004 of SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED. ----------------------------------------------------------- CHACKO PHILIP, MOOZHIYIL HOUSE, MARIYATHURUTHU P.O., KOTTAYAM, RESIDING AT FLAT NO. 7A1, CENTUARY TOWERS, Y.M.C.A ROAD, KOTTAYAM. BY ADV. SRI.A.K.HARIDAS RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.V.VISWANATHAN, KUNNATHUKALATHIL, GINO BHAVAN, THEKKUMGOPURAM, KOTTAYAM REPRESENTED BY THE POWER OF ATTORNEY HOLDER V.N.SIVADAS, VADAKKEDATHU HOUSE, S.H.MOUNT P.O., KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERLA, ERNAKULAM. ADV. SRI.MATHEW PHILIP EDAPPALLIL FOR R1 R2. BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER NO REPRSENTATION FOR THE REVISION PETITIONER TODAY ALSO. LEARNED COUNSEL FOR RESSPONDENT NO.1 PRESENT. THIS CRL.R.P.IS DISMISSED FOR NON-PROSECUTION. SD/-M.C. HARI RANI, JUDGE ks. P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. R.P. NO. 1049 OF 2005 = = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF NOVEMBER, 2011. O R D E R Revision petitioner was convicted by the Chief Judicial Magistrate Court, Kottayam in C.C. 328/2003 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for two years and a fine of Rs. 3,00,000/- with a default sentence of simple imprisonment for six months. Though he preferred Crl.A.454/2004 he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred. 2. Having heard either side and perusing the evidence on record and the judgment impugned, I find that the first respondent, the complainant before the trial court, through the evidence of PW.1 had succeeded in establishing that the revision petitioner owed the first respondent a sum of Rs. 3,00,000/- for the discharge of which Ext.P2 cheque dated 14.4.2003 for the said amount drawn on the Catholic Syrian Bank, Kottayam was issued. Crl. R.P. 1049/2005 2 When Ext.P2 was sent for collection, it was returned dishonoured for insufficient funds as evidenced by Ext.P3 and P4 memo and intimation. Intimating dishonour of the cheque and demanding discharge of liability, a lawyer notice copy of which was marked as Ext.P5 was caused. The revision petitioner declined to accept the same and it was returned unclaimed as evidenced by Ext.P7. Revision petitioner had taken a defence that there was a previous transaction for the security of which Ext.P2 cheque was issued as security. The revision petitioner entered the witness box and adduced evidence in support of his defence. According to him, in 2001 there was borrowal and a cheque was issued. The liability was subsequently discharged but the cheque was not returned with some ulterior motive and misusing that cheque, the prosecution was launched. Though DW.1 would depose that there was transaction in 2001 and it was discharged, no material is coming forward in support of the plea of discharge. Having carefully gone through the evidence of PW.1, I find that the courts below had correctly appraised the evidence and rightly come to the conclusion that Ext.P2 cheque was obtained by the first respondent in discharge of the liability alleged in the case and there is nothing to show that it was a cheque issued for an earlier transaction or that the liability was Crl. R.P. 1049/2005 3 discharged. The fact that Ext.P2 was dishonoured for insufficient funds and that liability was not discharged is not disputed. Ext.P5 and P7 would show that demanding discharge the first respondent caused a notice. But it was returned unclaimed. Therefore, it has to be presumed that knowing the contents of the notice, the revision petitioner declined to accept the same. That being the materials on record, there is statutory compliance of the required procedures by the first respondent before launching the prosecution. I find that the conviction under challenge is unassailable. Regarding the sentence, I find that the liability arose out of a business transaction and the financial difficulties led the revision petitioner to face the prosecution. Therefore, he is entitled to a little leniency and a sentence of imprisonment till the raising of the court with a fine of Rs. 3,20,000/- would meet the ends of justice. In the result, the revision petition is disposed of as follows: The conviction under challenge is confirmed. The sentence is reduced to imprisonment till the rising of the court and a fine of Rs. 3,20,000/- (Rupees three lakhs and twenty thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for six months. Out of the fine amount, if collected, Rs. 3,00,000/- shall be paid to the first Crl. R.P. 1049/2005 4 respondent as compensation. The revision petitioner is given four months time to remit the fine amount. Till then, the bail bond executed by the revision petitioner shall remain in force. P.S. GOPINATHAN, (JUDGE) knc/-