IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.Rev.Pet.No. 3252 of 2009() ------------------------------ CRA.608/2008 of ADDL.SESSIONS COURT (FAST TRACK), ALAPPUZHA CC.680/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- K.Y.RASHEED, SHIFA MEDICALS, MEDICAL COLLEGE JUNCTION, ALAPPUZHA. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: RESPONDENT/COMPLAINANT ------------------------------------- 1. K.KUTTAPPAN, S/O.CHELLAPPAN, SWAPNA BHAVAN, M.O.WARD, ALAPPUZHA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3252 of 2009 ---------------------------------------- Dated this the 19th day of November, 2009 ORDER The Judicial Magistrate of the First Class I, Alappuzha in C.C.No.680 of 2006 on his file convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment till rising of the court and a fine of Rs.50,000/- with a default sentence to undergo simple imprisonment for a period of four months. In Criminal Appeal No.608 of 2008, the Additional Sessions Judge,(Fast Track) Alappuzha confirmed the conviction and sentence. 2. Now assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is filed. 3. Having heard either side and perusing the judgments of the courts below, I find that the revision petitioner availed a loan of Rupees four lakhs from the first respondent and in partial discharge, Exts.P1 and P2 cheques drawn on Panjab National Bank for Rs.25,000/- each were issued and that when Exts.P1 and P2 were sent for collection those were returned dishonoured for insufficiency of funds as evidenced by Exts.P3 and P4 memos. Crl.R.P.No.3252 of 2009 2 Though a lawyer notice, demanding discharge of the liability was caused and it was acknowledged by the revision petitioner as evidenced Ext.P7, the liability was not discharged. Neither there was any reply. 4. The revision petitioner took up a defence that he was doing a partnership business with his brother and for the smooth running of the business certain blank cheques were given to the brother and that revision petitioner fell apart with the brother and misusing the cheques issued, the prosecution was launched. The courts below balanced the evidence of the revision petitioner with that of the first respondent and believed the testimony of PW.1, which is supported by Exts.P1 and P2 and the legal presumptions under Section 118 and 139 of the Negotiable Instruments Act. I fail to find any reason to interfere with the concurrent findings of the courts below. It is also pertinent to note that the revision petitioner did not dispute the acknowledgment of the notice. If the defence now advanced is true, in the normal course, the revision petitioner would have responded to the notice. The silence after acknowledging of the notice demanding discharge of the liability looms large and it Crl.R.P.No.3252 of 2009 3 appears that the defence now set up in the trial court is the result of an after thought. I find that the conviction is based upon cogent evidence. I find no merit to interfere with the concurrent findings of conviction under challenge. 5. The trial court was very lenient in reducing the sentence to one of imprisonment till rising of the court and a compensation equal to the amount of the cheques. If at all erred, it is only towards leniency. I find no reason to interfere with the sentence also. In the above circumstance, this revision petition is dismissed as devoid of merit. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE Skj.