IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4068 of 2006() ---------------------------------------- CRA.407/2004 of COURT OF SESSIONS JUDGE, PALAKKAD CC.40/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... PETITIONER/APPELLANT/ACCUSED ----------------------------------------------------- PALANISWAMY, AGED 52 YEARS, POSTAL ASSISTANT, THATHAMANGALAM POST, PALAKKAD. BY ADV. SRI.P.N.RAVINDRAN SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. RESPONDENTS/ RESPONDENT/COMPLAINANT AND STATE ------------------------------------------------------------------------------------- 1. P.VASUDEVAN, S/O.KUNJUKUTTY MOOTHAN, CHERIYEDATH HOUSE, KALPATHY P.O., PALAKKAD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. BY ADV. SRI.RAJESH SIVARAMANKUTTY FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 4068 of 2006() ORDER ON CRL.M.A.NO.11700 OF 2006 IN CRL. R.P. 4068 OF 2006 DISMISSED SD/- M.N.KRISHNAN, JUDGE 28.11.2008 /TRUE COPY/ PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- CRL. R.P.No. 4068 OF 2006 --------------------------------- Dated this the 28th day of November, 2008 ORDER This revision is preferred against the judgment in Crl. A. 407/2004 of the Sessions Judge, Palakkad. The said appeal was preferred against the judgment in C.C. 40/2003 of Judicial First Class Magistrate –III, Palakkad. It was a prosecution under Section 138 of the Negotiable Instruments Act and the accused was sentenced to undergo Simple Imprisonment for a period of 1 ½ months and to pay a compensation of Rs. 15,000/-, in default to undergo Simple Imprisonment for one month. In appeal the learned Sessions Judge confirmed the conviction and sentence and dismissed the same. It is against that the present revision is preferred. 2. Heard the learned counsel for the revision petitioner as well as the complainant before the court below. It is the case of the complainant that the revision petitioner had taken a loan for Rs. 15,000/- from him and towards discharge of that liability, he had issued a cheque, which when presented for encashment was returned with an endorsement of 'insufficiency of funds'. Thereafter statutory notice was issued and the amount was not paid. Then Crl.R.P.No. 4068/2006 -2- the criminal prosecution was initiated. 3. The trial court and the appellate court had considered the evidence elaborately and it has come out in evidence that the complainant is a Cash Overseer in the Postal Department and the amount was paid in September and after 15 days, the amount was demanded, a cheque was delivered to him at his house. The trend of cross examination is to the effect that the revision petitioner was detained by the complainant illegally and a blank cheque was obtained. Both the courts below elaborately considered the entire materials and arrived at the factual finding that the revision petitioner had borrowed the sum and executed a cheque towards discharge of the liability . I do not want to interfere with the said finding under Section 138 of the N.I. Act which is based on materials. 4. So far as the sentence is concerned, the courts below had sentence the revision petitioner to undergo Simple Imprisonment for 1 ½ months and to pay a compensation of Rs. 15,000/-. I feel some leniency can be shown in the matter. If the amount is paid, unnecessarily the revision petitioner need not be sent to jail. Therefore I feel it is a fit case where the sentence can be modified by directing the revision petitioner to undergo Simple Imprisonment for one day that is till the rising of the court and to pay a fine of Crl.R.P.No. 4068/2006 -3- Rs. 15,000/- which on realisation shall be disbursed to the complainant and in default of payment he has to undergo Simple Imprisonment for one month. In the result, the Criminal Revision Petition is 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 to pay fine of Rs. 15,000/- which on realisation shall be disbursed to the complainant and in default of payment of fine, the revision petitioner shall undergo Simple Imprisonment for one month. 3. The revision petitioner shall present himself before the court below to receive the sentence and pay the fine on 05.01.2009, failing which the lower court shall execute the sentence. 4. If any amount is deposited by way of compensation, it shall e treated as part of the fine and only balance need be deposited. Any amount deposited be disbursed to the complainant on proper application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm