IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1662 of 2006() ----------------------------------------- CRA.580/2004 of II ADDL. SESSIONS COURT, PALAKKAD ST.3769/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT,OTTAPPALAM .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- T.S.NALARAJAN, HOUSE NO.9, 1ST B 8TH CROSS ROAD, RAM MOORTHY NAGAR, BANGALORE. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENTS/RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. MAYILVAHANAM MARKETING, SHORNUR-2. PALAKKAD DISTRIC, T REPRESENTED BY ITS MANAGER AND POWER OF ATTORNEY HOLDER P.P.CHANDRAN. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH CORURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR R1 BY ADV. SRI.V.V.ASOKAN R1 BY ADV. SMT.S.AMINA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1662 of 2006 ORDER ON CRL.MA. NO.4617/2006 IN CRL.RP. NO.1662/2006 DISMISSED 11/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 1662 OF 2006 --------------------------------- Dated this the 11th day of December, 2008 ORDER This revision is preferred against the judgment in Crl.A.580/04 of the Additional Sessions Court, Palakkad. The said appeal was preferred against the conviction and sentence passed in S.T. 3769/2000 of the Judicial First Class Magistrate, Ottappalam. As per the said judgment the accused therein was convicted under Section 138 and directed to undergo Simple Imprisonment for a period of three months and to pay a compensation of Rs. 1,50,000/- and in default to undergo Simple Imprisonment for one month. This was confirmed by the appellate court. It is against that decision the revision is preferred. 2. It is the case of the complainant that the revision petitioner was working as a depot-in charge cum Commission agent. It is alleged that he misappropriated a sum of Rs. 6,31,057/- and ultimately he issued three cheques namely Exts. P1 to P3 for Rs. 50,000/- each towards the discharge of the liability which when presented for encashment were returned for insufficiency of funds. In spite of notice, he did not pay the amount and hence the action. Crl.R.P.No. 1662/2006 -2- The defence appears to be that he had signed some blank cheques at the time of appointment and that has been misused for the purpose of filing this case. In the trial court PW1 was examined and Exts. P1 to P10 were marked. The trial court as well as the appellate court had analysed the evidence to arrive at a decision regarding the transaction, issuance of cheque, dishonour etc. PW1 deposed about the misappropriation and also spoke about the issuance of the cheque. A notice was issued for which no reply was sent at all. So the courts below accepted the evidence of PW1 to prove the execution of the cheque and further held that there is no evidence tendered to rebut the presumption, which are provided under section 118 and 139 of the N.I Act. Therefore I do not find any perversity or illegality in arriving at a decision of guilt by the courts below. Therefore I sustain the same. 3. So far as the sentence is concerned, the revision petitioner is directed to undergo Simple Imprisonment for a period of three months and pay compensation of Rs. 1,50,000/-. The learned counsel for the revision petitioner submits some leniency can be shown regarding the sentence and some time may be granted and there is really and genuine interest for the person to pay the Crl.R.P.No. 1662/2006 -3- amount. In this context it has to be stated that the complainant in this case has filed a civil suit and obtained a decree in his favour. So taking note of the entire materials, I am inclined to reduce the sentence of imprisonment and convert the payment of compensation as to that of fine with default sentence and also further observe that if fine amount is realised and disbursed to the complainant, then the complainant shall only recover the excess amount due under the decree after giving credit to Rs. 1,50,000/-. I make it very clear that if only payment is made such concession be given otherwise the entire civil decree can be executed. In the result, the Criminal Revision Petition is disposed of as follows: 1. The conviction under section 138 of Negotiable Instruments Act is sustained. 2. The sentence is modified and the revision petitioner is directed to undergo Simple Imprisonment till the rising of the court and to pay a fine of Rs. 1,50,000/- which on realization shall be disbursed to the complainant and in default, revision petitioner shall undergo Simple Imprisonment for a period of two months. Crl.R.P.No. 1662/2006 -4- 3. The revision petitioner shall present himself before the trial court to receive the sentence and to pay the fine on 16.2.2009, failing which the trial court shall execute the sentence. 4. If any amount is deposited as compensation it can be treated as a part of fine and balance need be deposited and the amount so deposited shall be disbursed to the complainant on appropriate application. 5. If the entire amount of Rs. 1,50,000/- is paid, the complainant shall execute the civil decree only for the balance amount after adjusting the amount which he had realised under in this case. The Crl. Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm