IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 808 of 2001 ----------------------------- ( ST.990/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA CRL. APPEAL NO. .277/1999 of ADDL. SESSIONS COURT, ALAPPUZHA ) REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------- R. MADHUSUDHANAN NAIR, PANANGATTU HOUSE, KADAKKARAPPALLI P.O., CHERTHALA. BY ADV. SRI.JOHN JOSEPH (ROY) RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------------------ 1. V.R. GOPI, S/O. RAMANACHARI, THANKICHIRAYIL (SARITHA NIVAS), C.M.C. 26, CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.K.SAJEEV R2 BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.808 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 3rd day of December, 2008 O R D E R -------------- Heard both sides. 2. Revision petitioner is aggrieved by his conviction for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Learned magistrate sentenced him to undergo simple imprisonment for two months and payment of fine of Rs.13,000/-. Revision petitioner carried the matter in appeal where, conviction and substantive sentence were confirmed but fine was reduced to Rs.5,000/-. Hence this revision. 3. It is contended by learned counsel that due execution of the cheque is not proved. First respondent supported the findings entered by the courts below. 4. According to the first respondent, revision petitioner borrowed Rs.12,000/- from him on 24.1.1995 and issued Exhibit P1, cash cheque dated 25.1.1995. First respondent presented that cheque for collection through his bank but it was returned on 1.2.1995 for insufficiency of funds. Notice was issued to the revision petitioner on 10.2.1995 intimating dishonour and demanding payment. Notice was CRL. R.P. No.808 of 2001 -: 2 :- served on 17.2.1995 but there was no positive response. Hence the complaint. First respondent gave evidence as P.W.1, examined P.Ws.2 and 3 and proved Exhibits P1 to P8. Evidence of P.Ws.2 and 3 and Exhibits P2 to P8 show that cheque was dishonoured for insufficiency of funds. Case of revision petitioner is that he had no transaction with the first respondent and had given Exhibit P1 to one Lalith Mohan as an accommodation cheque. Courts below did not accept that contention. 5. That, Exhibit P1 is a cash cheque cannot take it outside the purview of Section 138 the Act particularly when it is the case of revision petitioner that he had given that cheque to another person though according to him for some adjustment. So far as that contention is concerned, what I find is only certain suggestions to first respondent when the latter was in the box. First respondent has given evidence regarding the transaction. Nothing is brought out to disbelieve his version. Contention of the revision petitioner that he gave Exhibit P1 to Lalith Mohan is not substantiated or even probabilised. 6. Though it was contended in the court below on behalf of revision petitioner that Exhibits P6 and P8 were fraudulently created CRL. R.P. No.808 of 2001 -: 3 :- for this case, trial court found against that contention and held that evidence of P.Ws.2 and 3 and Exhibits P2 and P6 to 8 revealed that cheque was dishonoured for insufficiency of funds and that dishonour intimation was given to the revision petitioner on 1.2.1995. Considering the evidence in the light of the contentions raised on either side, I have no reason to interfere with the concurrent findings of fact entered by the courts below. Conviction therefore cannot be assailed. 7. So far as sentence awarded is concerned, considering the amount involved and the object of legislation, I am of the view that simple imprisonment till rising of the court and payment of compensation will be sufficient in the ends of justice. Resultantly, revision petition is allowed in part in the following lines: (i) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court. (ii) Revision petitioner is directed to deposit in the trial court for payment to the first respondent Rs.13,000/- (Rupees Thirteen thousand only) as CRL. R.P. No.808 of 2001 -: 4 :- compensation within three months from this day failing which he shall undergo simple imprisonment for two months. (iii) It will be sufficient compliance with the direction contained in clause (ii) above if revision petitioner paid compensation to the first respondent through counsel in the trial court and first respondent files a statement in the trial court through counsel within the said period of three months acknowledging receipt of the amount. (iv) Revision petitioner shall surrender in the trial court on 10.3.2009 to receive the sentence. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.3746 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.808 of 2001 -: 5 :- THOMAS P.JOSEPH, J. =================== CRL.R.P. NO. 808 OF 2001 =================== O R D E R 3RD DECEMBER, 2008