IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 1647 of 2006() ------------------------------ CRA.639/2004 of ADDL.SESSIONS COURT, KOTTAYAM CC.308/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.P. SUDHA, WIFE OF HARI, RESIDING AT RAGINI SADANAM, MOOZHOOR P.O., MANJAMATTOM, AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, NOW RESIDING AT KAIPPANAPARAYIL HOUSE,CHENGALOM PO KOORALI, PONKUNNAM. BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, KOTTAYAM. 2. SHINOY MATHEW, MOOLAYIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM. ADV. SRI.P.P.JACOB FOR R2 PUBLIC PROSECUTOR THOMAS JOHN AMBOOKEN - R1 SRI. GEORGE VARGHESE - R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 1647/2006 ORDER ON CRL. M.APPLICATION NO. 4575/2006 IN CRL. R.P.NO. 1647/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 13.11.2008 /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J ----------------------- CRL. R.P.No. 1647 OF 2006 --------------------------------- Dated this the 13th day of November, 2008 ORDER This Revision Petition is preferred against the judgment in Crl. Appeal No. 639/2004 of the Addl. Sessions Judge, Kottayam. The said appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate Court-II (Mobile) Kottayam in C.C. No. 308/2003. The Trial Court convicted the accused under Section 138 of the Negotiable Instrument Act and sentenced him to undergo Simple Imprisonment for one year and to pay Rs. 2,50,000/- as compensation. It was against that decision the appeal was preferred. The appellate court had modified the sentence that of imprisonment till rising of Court and imposition of compensation under Section 357(3) of Criminal Procedure Code was retained. The revision is preferred against the said judgment. 2. The case of the complainant is that he had supplied furniture and towards discharge of the liability the revision petitioner had issued a cheque which when presented for encashment was dishonoured. In spite of statutory notice the revision petitioner did not pay the amount. The attempted defence Crl. R.P. No. 1647/2006 -2- was that the revision petitioner's husband was conducting a textile shop which he sold in February 2001. Therefore there was no need for supplying furniture much less issuance of any cheque. The courts below had analysed evidence of PW1 and DW1 as well as Exts. P1 to P7 and D1 to D4. The complainant spoke in line regarding the execution of the cheque. It is the definite case of the accused that the cheque which was kept in the shop was stolen by one person namely Manual John and it has been utilised for the filing of the case. It has to be remembered that when a blank signed cheque is lost, nobody will keep quite. Further when action is initiated and notice is sent, no reply is forthcoming at all. An agreement between two persons is produced and that too not the original and that they had entered into a compromise in Adalath. These things are not binding on the complainant. Further if really there had been a legal transfer of the Textile Shop, there will be documents in the Panchayath or the Sales Tax department regarding the transfer and conduct of the Textile Shop by the person who had purchased it. So analysing the entire materials, the courts below found that the accused had committed the offence under Section 138 which I also find that it does not suffer from any perversity, illegality or irregularity. Therefore the finding of Crl. R.P. No. 1647/2006 -3- conviction under Section 138 is sustained. So far as sentence is concerned, the Appellate Court has shown mercy, but I modify the sentence of compensation to one with fine as well. In the result, Criminal Revision Petition disposed of as follows: 1. Conviction under Section 138 is sustained. 2. The revision petitioner is sentenced to undergo Simple Imprisonment for one day that is till the rising of the Court and pay a fine of Rs. 2,50,000/- which on realisation shall be disbursed to the complainant and in default of payment of fine revision petitioner shall undergo Simple Imprisonment for three months. 3. The revision petitioner shall present himself before the Trial Court to receive the sentence and pay the fine on 12.2.2009, failing which the trial court shall execute the sentence. 4. If any amount paid, that amount shall be treated as part of fine and only balance be deposited. The said amount be disbursed to the complainant on a proper application. The Crl. Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm