IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3144 of 2005() ----------------------------------------- CRA.1229/2004 of V ADDL.SESSIONS COURT, ERNAKULAM CC.19/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------ BABU C. MALAYAN, ULLATTIL HOUSE, MULANTHURUTHY P.O. BY ADV. SRI.P.T.JOSE RESPONDENTS/APPELLANT/ACCUSED: --------------------------------------------------------- 1. P.G. DREAMSU , PANAKKAL HOUSE, MARKET ROAD, NORTH END, ERNAKULAM, COCHIN-18. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SRI.P.T.SEBASTIAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== Crl.R.P. No.3144 OF 2005 ===================== Dated this the 16th day of December 2008 O R D E R This revision petition is preferred against the judgment of the Sessions Court, Ernakulam in Crl.A.No.1229 of 2004. The said appeal was preferred against the conviction and sentence passed in CC No.19 of 2001 of the Judl.I Class Magistrate Court-I, Ernakulam. The trial court convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one month. The appellate court in appeal modified the sentence into one ,i.e. imprisonment till the raising of the court and to pay a compensation of Rs.12,000/- and in default the accused shall undergo simple imprisonment for one month. 2. It is the case of the complainant that he had advanced a sum of Rs.50,000/- to the accused and he had issued a cheque towards the discharge of liability which when presented for encashment returned with the endorsement 'insufficiency of funds'. After issuing statutory notice and waiting for 15 days the criminal prosecution has been initiated. The case of Crl.R.P.No.3144/2005 -:2:- the accused appears to be that he had borrowed a sum of Rs.25,000/- and it discharged the liability and only a balance of Rs.10,200/- still remains to be due. 3. PW1 was examined, proved execution of Ext.P1 cheque and the petitioner neither disputed nor disowned the same. The dispute was only with respect to some amount. Exts.D1 and D2 were produced and the trial court in paragraph 7 of the judgment held that Ext.D1 cannot be said to be proved and further held that in Ext.D2 there is only a statement given by the Lawyer as instructed by the revision petitioner and it is no substitute for proof. The court did not accept the evidence of DW1 and DW2. But, in paragraph 14 the court has made an observation that the claim of the complainant is not genuine. Most probably the court only means that all is not well with the case so as to give compensation. The appellate Judge again reappraised the matter and found that the guilt under Section 138 has been proved. The appellate court referred to the admitted case of the revision petitioner that still an amount of Rs.10,200/- was outstanding and therefore awarded a compensation of Rs.12,000/- with default sentence. I cannot find fault with the appellate Judge in ordering compensation. I do Crl.R.P.No.3144/2005 -:3:- not find any merit in this revision. Hence it is dismissed. M.N.KRISHNAN, JUDGE Cdp/-