IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 1250 of 2006(A) -------------------------------------------- CRL.A. NO.13/2004 OF ADDL. SESSIONS COURT (FAST TRACK COURT-II), THRISSUR, CC. NO. 99/2001 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD. .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ P.K.GOPALAKRISHNANN, S/O.KRISHNAN NAIR, SREEHARI, VALLASSERI PARAMBA, P.O.KAREKKAD. BY ADV. SRI.K.RAMACHANDRAN, SMT.R.MEERA, SRI.K.MOHAMMED FAISAL NAHA, SMT.RESHMI RAMKUMAR. RESPONDENTS/ COMPLAINANT AND STATE: ----------------------------------------------------------------- 1. N.GOKULA DAS, S/O.KANDUNNI NAIR,QUARTER NO. 60, DEVASWOM QUARTERS, SOUTH NADA, GURUVAYOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN, R1 BY ADV. SRI.DILIP J. AKKARA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== Crl.R.P. No.1250 OF 2006 ===================== Dated this the 6th day of November 2008 O R D E R This revision is preferred against the judgment of the Addl.Sessions Court, Thrissur in Crl.A.No.13/2004. The said appeal was preferred against the conviction and sentence passed by the Judicial Magistrate of the I Class, Chavakkad in CC No.99 of 2001 whereby he found the petitioner guilty under Section 138 of the Negotiable Instruments Act and convicted him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.65,000/- to the complainant. The learned appellate Judge confirmed the conviction and modified the sentence to imprisonment till the raising of the court and to pay Rs.93,000/- as compensation to the complainant and in default to undergo simple imprisonment for three months. It is against that decision the accused has come up in revision. 2. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.65,000/- on 18.3.1989 and when demanded issued a cheque for Rs.65,000/- which when presented for encashment was returned with the endorsement insufficiency of funds. A legal notice was issued Crl.R.P.1250/2006 -:2:- and on account of the non-payment, the action was initiated under Section 138 of the NI Act. 3. In the trial court PW1 was examined and Exts.P1 to P8 were marked. PW1 spoke in line with the complainant. He also proved that the cheque was presented and it has come back as dishonoured. According to him, the notice was sent on his residential as well as official address, but the petitioner did not receive the same. Regarding the source of income also PW1 was spoken that he is having income from the photostat business, salary from Jayasree theatre as a ticket collector and further as a petty contractor under the Guruvayur Devaswom. The court accepted his version. The contention of the accused that a signed black cheque was issued as security was denied by the complainant. The courts below found that except the assertion nothing is there to prove that it was issued as a security for an amount of Rs.65,000/-. The courts below thereafter appreciated the evidence and came to the conclusion regarding the execution of the cheque, the return of cheque for insufficiency of funds, proper service of notice and thereafter convicted the petitioner under Section 138 of the N.I.Act. I do not find any perversity, illegality or irregularity in such a finding and therefore I confirm the finding under Section 138. Crl.R.P.1250/2006 -:3:- 4. Learned counsel contends that the lower appellate court was harsh on him by enhancing the compensation from Rs.65,000/- to Rs.93,000/-, though it reduced the sentence of imprisonment. It is submitted by the learned counsel that the petitioner is a poor person who cannot afford to raise funds and leniency may be shown. After bestowing best attention, I feel there can be leniency so that at least there will be some satisfaction for the petitioner as well as to the complainant if that amount at least is paid. Therefore I modify the sentence to simple imprisonment for one day till the raising of the court and convert the compensation under Section 357(3) as one into fine of Rs.70,000/- which on realisation be given to the complainant. In default, the petitioner shall undergo imprisonment for a period of two months. In the result, the revision petition is disposed of as follows:(1) The conviction under Section 138 is confirmed.(2) The sentence is modified whereby the revision petitioner is sentenced to undergo simple imprisonment for a period of one day till the raising of the court, if not already undergone and to pay a fine of Rs.70,000/- which on realisation be disbursed to the complainant and in default, the petitioner has to undergo S.I. for a period of two months. The petitioner shall himself appear before the trial court to receive the sentence and for payment of fine, on 5.2.2009, Crl.R.P.1250/2006 -:4:- in default, the trial court shall execute the sentence. If any amount is already in deposit, it shall be converted into fine and on application the amount shall be disbursed to the complainant. M.N.KRISHNAN, JUDGE Cdp/-