IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1573 of 2006(B) -------------------------------------- CRA.175/2003 of ADDL. SESSIONS JUDGE, FAST TRACK COURT.II, PALAKKAD. ST.31/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ S.SUNIL, SINCERE SALOON, NEAR BHARAT TOURIST HOME, COLLEGE ROAD, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------------------------- 1. JAYAKRISHNAN, S/O.K.K.KITTA, KANJIRAMPALLAM VEEDU, KANNANUR POST, ALATHUR TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJESH SIVARAMANKUTTY FOR R.1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== CRL.R.P. No 1573 OF 2006 ===================== Dated this the 27th day of November 2008 O R D E R This revision petition is preferred against the judgment of the Addl.Sessions Judge, Palakkad in Crl.A.No.175 of 2003. The said appeal was preferred against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in C.C.No.No.31/2000 of the Chief Judicial Magistrate Court, Palakkad. The trial court convicted the accused and sentenced him to undergo simple imprisonment for one month and to pay a sum of Rs.40,000/- under Section 357(3) of the Crl.P.C. and in default to undergo simple imprisonment for 15 days. The appellate court on appeal, confirmed the conviction and it is against that decision, the revision petition is filed. 2. Heard the counsel on both sides. Perused the judgment. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.40,000/- and towards the discharge of liability, he had issued a cheque which when presented for encashment returned with the endorsement 'insufficiency of funds'. After complying with the statutory provisions, the CRL.R.P.1573/2006 -:2:- prosecution was initiated. PW1 was examined and he had spoken in line with the complaint and also had proved the issuance of notice, etc. In cross examination, an attempt was made that the complaint has been filed in collusion with Advocate Jayan C.Thomas. It has been stoutly denied. Though it was contended that the signature of the accused was not there in Ext.P1 cheque the courts below found that it does not appear to be a genuine contention at all. While he was examined under Section 313 also, the accused did not raise such a contention. The courts below, on appreciation of the entire materials, found that the accused had executed Ext.P1 cheque and that he had issued the same in discharge of the liability and therefore drew the presumption under Section 139 of the NI Act. I do not find any mistake committed by the courts below. 3. So far as sentence is concerned I feel some leniency can be shown if really the petitioner wants to pay the amount. I modify the sentence to undergo imprisonment for one day, i.e. till the raising of the court and convert the compensation into that of fine which on realisation be disbursed to the complainant. In the result, the crl.revision petition is disposed of as follows:(1) The conviction under Section 138 is sustained. (2) The sentence is modified and the petitioner is directed to undergo simple imprisonment for CRL.R.P.1573/2006 -:3:- one day, i.e. till the raising of the court and to pay a fine of Rs.40,000/- which on payment shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for one month. (3) The revision petitioner shall present before the trial court for receiving sentence and for making payment of fine on 16.2.2009, failing which the trial court shall execute the sentence.(4) If any amount has been deposited as compensation, it shall be treated as part of fine amount and the balance need be realised and on realisation be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-