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. 3612 of 2009() ------------------------------ CRA.241/2008 of SESSIONS COURT, KASARAGOD CC.102/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II (ADDL.MUNSIFF), KASARAGOD .................... REVN. PETITIONER: APPELLANT ------------------------------ MR. RADHAKRISHNA ALVA.P, S/O. KUNHANNA ALVA, POOVANADKA HOUSE, PERLA.P.O, ENMAKAJE VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENTS: COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M/S. MANAPPURAM GENERAL FINANCE AND LEASING LTD., KASARAGOD BRANCH, EMARALA TOWERS, NR. OLD BUSTAND KASARAGOD, KASARAGOD TALUK AND D.T, REP. BY MR.M.S. GAUTHAN, AGED 34 YEARS, ASST. MANAGER (LEGAL) PUBLICE 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.3612 of 2009 ---------------------------------------- Dated this the 19th day of November, 2009 ORDER The revision petitioner was convicted for offence under Section 138 of the Negotiable Instruments Act, by the Judicial Magistrate of the First Class-II, (Additional Munsiff) Kazargod in C.C.No.102 of 2008 on his file and sentenced to simple imprisonment for three months and ordered to pay Rs.25,651/- to the second respondent as compensation under Section 357(3) of the Code of Criminal Procedure. In Criminal Appeal No.241 of 2008, the learned Sessions Judge confirmed the conviction. But the substantive sentence was reduced to simple imprisonment for ten days. Order to pay compensation was sustained. Now this revision petition. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the second respondent through the evidence of PW.1 had succeeded to establish that out of a kury transaction Rs.25,651/- was due from the revision petitioner to the second respondent and in discharge of the said liability, Ext.P1 cheque dated 2/6/2007 for the said amount drawn on Vijaya Bank, Katukukke branch was issued and that when Ext.P1 was sent for collection Crl.R.P.No.3612 of 2009 2 through Dhanalakshmi Bank, Kasaragod Branch it was returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memo and communication and that demanding discharge of the liability, a notice dated 10/7/2007, copy of which was marked as Ext.P4 was caused. Despite the acknowledgment of notice as evidenced by Ext.P5 dated 17/7/2007, the liability was not discharged. Neither there is any reply. The defence of the revision petitioner is one of total denial and had advanced a contention that the cheque was issued as a security, but he failed to adduce any evidence in support of the defence plea. The result is that as against the defence suggestion, the evidence of PW.1 which is supported by legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act remains uncontroverted. There is no reason to disbelieve PW.1. The courts below had correctly appreciated the evidence and concurrently found against the revision petitioner. I find no reason to interfere with the concurrent finding of guilt. 3. As regards the sentence, taking into account that the cheque was issued out of a chitty transaction, I find that the revision petitioner is entitled to a little leniency in sentence and Crl.R.P.No.3612 of 2009 3 that a sentence of imprisonment till rising of the court with order to pay compensation as ordered by the courts below would meet the ends of justice. 4. In the result, this petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the court. The order to pay compensation with default sentence as ordered by the courts below is sustained. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by the revision petitioner shall remain in force. P.S.GOPINATHAN, JUDGE Skj.