IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3186 of 2005(C) ------------------------------ CRA.699/2003 of ADDITIONAL SESSIONS COURT (ADHOC)III, THRISSUR CC.756/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SATHYAN, S/O. VELUKUTTY, KALLITAMAKUZHI HOUSE, MELOOR. BY ADV. SRI.SREELAL WARRIER SRI.A.K.MADHAVAN UNNI SRI.SIVARAM R.MENON SRI.NIZAMUDDIN E.A. RESPONDENT(S): RESPONDENTS/COMPLAINANTS: ----------------------------------------------------- 1. RAMANATHAN, S/O. SARASWATHI AMMA, MATTATHIL HOUSE, ANNANADU DESOM, KALLOOR, VADAKKUMURY VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.D.PANICKER FOR R1 SMT.JEENA JOSEPH FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 3186 OF 2005 = = = = = = = = = = = = = = = Dated this the 10th day of November, 2008. O R D E R This revision is preferred against the judgment of the Sessions Judge, Thrissur in Crl.A.699/03. The said appeal had been preferred against the conviction and sentence passed by the Judicial First Class Magistrate, Chalakudy in C.C.756/00. It was an action initiated u/s 138 of the N.I. Act. The trial court found the accused guilty u/s 138 and convicted and sentenced him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.2,00,000/- in default to undergo simple imprisonment for three months. In appeal the conviction was confirmed, sentence was modified into one of imprisonment till the raising of the Court and to pay a compensation of Rs.2,25,000/- and in default to undergo simple imprisonment. It is against that decision the accused has come up in revision. Cr.R.P. 3186 OF 2005 -:2:- 2. Heard the learned counsel for the revision petitioner as well as the counsel for the respondent. At the out set the limitation of revisional Court has to be mentioned. i.e, Unless there is illegality, irregularity, perversity or total mis-appreciation of evidence the revisional Court is not expected to entertain any question on facts. The learned counsel for the revision petitioner would submit before me that he moved an application u/s 311 for comparing the signatures in Exts.D1 and D2 which was dismissed for non payment of the amount for sending it to the expert. The appellate court also did not entertain the plea and at this revisional stage this Court may not be able to entertain the case especially when there are other circumstances pointed out. 3. It is the case of the complainant that the accused had borrowed a sum of 2,00,000/- on 2.3.00 and in discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with endorsement insufficiency of funds. Thereafter a statutory notice was Cr.R.P. 3186 OF 2005 -:3:- issued and as no payment was made action was initiated u/s 138. 4. The defence of the revision petitioner appears to be that in the year 1997 he had borrowed a sum of Rs.75,000/- and at that time has handed over a cheque to the complainant as security which has been misused by him for filing the complaint. The Court below appreciated the evidence of the complainant as well as the accused and found in favour of the complainant. The Courts below found that even according to the accused the discharge was made as early as in June, 1998 and the substantial documents relied on for the purpose of proving the discharge are thereafter and if the amount has been already paid there was no necessity for the mother to execute the document in favour of the complainant towards discharge of the liability. 5. So far as the slips were concerned namely Exts.D2 and D3 the Courts below found that the complainant had denied its execution and the revision petitioner did not succeed in proving the same. So taking into consideration Cr.R.P. 3186 OF 2005 -:4:- the negotiable instrument namely Ext.P1 cheque and the presumption u/Ss. 118 and 139 of N.I. Act in the absence of acceptable evidence to rebut the presumption under those Sections the Courts below found in favour of the complainant and held that the accused had committed an offence u/s 138. One cannot find any irregularity, illegality or perversity in such a finding and therefore there is no scope to interfere with the conviction u/s 138. 6. Learned counsel lastly submits that some leniency may be shown in the case of punishment. Appellate court has already shown leniency by reducing three months imprisonment to one of imprisonment till the raising of the Court but enhanced the compensation u/s 357(3)Cr.P.C. from 2 lakhs to 2.25 lakhs. Being a criminal prosecution I feel some leniency can be shown in 138 matters and therefore it will be only just to reduce the amount to Rs.2,00,000/- and further to convert it as fine. In the result the Criminal Revision is disposed of as follows: Cr.R.P. 3186 OF 2005 -:5:- (1) The conviction u/s 138 of the N.I. Act is upheld. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.2,00,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. (4) The revision petitioner shall appear before the trial court to receive the sentence on 5.2.2009 and also for payment of fine. In default the trial court is directed to execute the sentence. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-