IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 1052 of 2003(A) ------------------------------ CRA.118/2000 of ADDL.SESSIONS COURT, KOTTAYAM CC.615/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- E.T.SEBASTIAN, EDAKALATHU, VAZHOOR EAST P.O., VAZHOOR, MANIMALA. BY ADVS SRI.P.RAVINDRA BABU SRI.SURIN GEORGE IPE RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. T.K.JAYAPRAKASH, THEKKUMPURATH, ANAKKALLU, KANJIRAPPALLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SERGI JOSEPH THOMAS R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 5/11/1009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: shg/ P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1052 of 2003 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of November, 2009 O R D E R 1. Revision petitioner is the accused in C.C.No.615/2007 on the file of the Judicial Magistrate of the First Class-II, Kanjirappally. The 1st respondent herein filed the above complaint against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The revision petitioner pleaded not guilty. Hence he was sent for trial. After trial the learned Magistrate arrived at a conclusion of guilt. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for one month. In Crl. Appeal No.118/2000, the Additional Sessions Judge (Special), Kottayam confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision Crl.R.P.No. 1052 of 2003 2 petitioner and perusing the judgments of the court below I find that the 1st respondent who was examined as PW1 supported by the evidence of PW2 and Exhibits P1 to P7 series had succeeded to establish that on 14.03.1997 the revision petitioner borrowed a sum of Rs.30,000/- from the 1st respondent and in discharge of the said liability Ext.P1 cheque dated 14.08.1997 for the said amount was delivered and that when Ext.P1 was sent for collection it was returned dishonoured as evidenced by Exts.P2 & P3 intimation and memo dated 23.08.1997 and 20.08.1997 respectively. Demanding discharge of the liability a lawyer notice dated 03.09.1997 was caused. The notice was returned unclaimed as evidenced by Ext.P6. The evidence of PW2 is to that effect. Neither the liability was discharged. The revision petitioner took up a defence when questioned under Section 313 of the Code of Criminal Procedure, that a signed cheque was stolen from his custody. He denied the liability. However he did not even attempt to adduce any evidence in Crl.R.P.No. 1052 of 2003 3 support of such plea. The result is that the evidence of PW1 corroborated by Ext.P1 and the presumptions under Section 118 and 139 of the Negotiable Instruments Act remains uncontroverted. There is nothing brought out to show that the 1st respondent got Ext.P1 cheque in any manner other than that was deposed by PW1. The courts below had correctly appreciated the evidence. The fact that the cheque was dishonoured for insufficiency of fund was not at all disputed. The notice was duly stamped and correctly addressed to the revision petitioner. But it was returned unclaimed. So, it is to be treated that there is sufficient notice and thus there is compliance of the statutory procedures. The courts below rightly arrived at a conclusion against the revision petitioner. I find no reason to interfere with the conviction under challenge. 3. Though a sentence of simple imprisonment for one month was awarded against the revision petitioner there is no direction to pay any compensation. It is stated Crl.R.P.No. 1052 of 2003 4 that the revision petitioner is a driver. In the above circumstances, I find that the sentence requires a modification and that a sentence of imprisonment till rising of the court with direction to pay Rs.35,000/- as compensation to the 1st respondent would meet the ends of justice. 4. In the result, the revision petition is allowed in part while confirming the conviction, the sentence is reduced to imprisonment till rising of the court with direction to pay Rs.35,000/- as compensation to the 1st respondent. In the event of default of payment of compensation the revision petitioner shall undergo simple imprisonment for a further period of one month. The revision petitioner is granted 30 days time for payment of the compensation. P.S. GOPINATHAN, JUDGE shg/