IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 503 of 2001(C) ------------------------------ CRA.404/1992 of I ADDL.SESSIONS COURT, ERNAKULAM CC.322/1990 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- KABEER KHADER MUHAMMED, S/O.MOIDHEEN KUNJU, RESIDING AT C1, STAR GARDENTS APARTMENT, VRIDHAVAN COLONY, JAWAHAR NAGAR, ERNAKULAM. BY ADV. SRI.P.M.JOSHI RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- 1. M/S.VIJAYA BANK , REP. BY ITS BRANCH MANAGER, SOMASEKHARAN NAIR, M.G.ROAD, ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R1 SMT.N.SUDHA FOR R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 9/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.503 of 2001 -------------------------------------- Dated this the 9th day of December, 2008. ORDER This revision arises from the conviction of revision petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). He was sentenced to undergo rigorous imprisonment for one year and payment of fine of Rs.10,000/-. When the revision came up for hearing on 2.12.2008, there was no representation for the revision petitioner and hence, the matter was posted to this day for disposal. Today when the case is taken up for hearing, counsel reports 'no instruction' for revision revision petitioner. Revision petitioner remained absent. I heard counsel for first respondent and the Public Prosecutor. Hearing the parties/counsel in revision is only optional under Section 403 of the Code of Criminal Procedure. Hence, I propose to dispose of the revision petition after perusing the records and hearing the counsel for first respondent and the Public Prosecutor. 2. First respondent filed a complaint against the revision petitioner alleging that Ext.P1, cheque dated 15.3.1990 for Rs.20,000/- issued by the revision petitioner for the discharge of liability in favour of the first respondent was dishonoured for insufficiency of funds and that inspite of dishonour intimation and demand, the amount covered by the cheque was not paid. Dishonour of the cheque is proved by Exts.P2, P5 and P6 and the evidence of Crl.R.P.No.503/2001 2 PW2, the manager of the drawee bank. Issue and service of notice intimating the dishonour and demanding payment are proved by Exts.P3 and P4. Case of the first respondent is that revision petitioner was running a proprietory concern by name 'M/s.Lords', that concern was given cash credit facility to the tune of Rs.5,000/- and also credit card facility was also given to the revision petitioner and towards part payment of the amount due to the first respondent on that account, revision petition issued the said cheque. Manager of the first respondent gave evidence as PW1. 3. When questioned under Section 313 of the Code of Criminal Procedure, revision petitioner did not have any specific case how the cheque drawn on his account happened to be in custody of first respondent. 4. Learned Chief Judicial Magistrate found that contention of the revision petitioner is not acceptable, acted upon the evidence of PW1 and Exts.P2 to P6 and found the revision petitioner guilty, convicted and sentenced him as abovestated. Appeal preferred by the revision petitioner was dismissed. It is contended by the revision petitioner that the courts below without valid reasons rejected the contention of the revision petitioner. It is also contended that the holder in due course of the cheque has not filed the complaint. Crl.R.P.No.503/2001 3 5. So far as the contention that the complaint is not filed by the holder in due course is concerned, it is seen that Ext.P1 is issued to M/s.Vijaya Bank and the complaint is preferred by M/s.Vijaya Bank represented by its Branch Manager. Therefore, that contention of the revision petitioner cannot be sustained. 6. So far as the next contention of the revision petitioner is concerned, I find that he did not have a specific case how the cheque happened to be in the custody of the first respondent. On the other hand, PW1 stated that revision petitioner had issued the cheque towards part payment of the amount due to the first respondent. No infirmity is pointed out in the proceedings of the courts below and judgments under challenge. Courts below rightly found revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. No interference is called for. 7. Counsel for first respondent submitted that there are other cases also pending against the revision petitioner. However, considering the nature of the offence and amount involved, I am inclined to think that substantive sentence can be modified as simple imprisonment till rising of the court. At the same time, revision petitioner has to compensate the loss caused to the first respondent. Revision petitioner is directed to pay Rs.25,000/- as compensation to the first respondent. Revision petition is therefore, allowed in part in the following lines:- Crl.R.P.No.503/2001 4 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 as compensation Rs.25,000/- (Rupees Twentyfive thousand only) within two months from this day failing which, he shall undergo simple imprisonment for two months. iii. Revision petitioner shall surrender in the trial court on 13.2.2009 to receive the sentence. iv. Bail bond is cancelled. Crl.M.P.No.2353 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.503/2001 5 Thomas P.Joseph, J. Crl.R.P.No.503 of 2001 ORDER 9th December, 2008