IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.Rev.Pet.No. 2923 of 2009() ------------------------------ CRA.381/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.484/2005 of JUDICIAL FIRST CLASS COURT- V, NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.VINCENT, AGED 47, VALAYAM PUTHUVAL PUTHEN VEEDU, ERNAKULAM, PLAMOOTTUKADA P.O., KULATHOOR VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAVINDRAN, S/O.CHELLAYYAN, MAVILAMEKKARUKE VEEDU, KANJIRAMKULAM DESOM, KANJIRAMKULAM VILLAGE. BY PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J ---------------------------------------- Crl.R.P.No.2923 of 2009 ---------------------------------------- Dated this the 17th day of September, 2009 ORDER The second respondent prosecuted the revision petitioner before the Judicial Magistrate of the First Class - V, Neyyattinkara alleging offence under section 138 of the Negotiable Instrument Act. Originally the case was numbered as ST No.756/2005. Later it was renumbered as CC.No.484/2005. The learned magistrate after due tiral found the revision petitioner guilty for offence under section 138 of the Negotiable Instrument Act. Consequently he was convicted and sentenced to simple imprisonment for one month. He was further directed to pay Rs.43,000/- (Rupees Forty Three Thousand only) as compensation under section 357(3) of Cr.PC with a default clause. In appeal the Additional Sessions Judge, Fast Track(Adhoc-IV), Thiruvananthapuram confirmed the conviction and sentence. Assailing the legality,correctness and propriety of the above conviction and sentence confirmed in appeal this revision Crl.R.P.No.2923 of 2009 2 petition was filed. 2. I heard the learned counsel and perused the judgments impugned. Having heard the learned counsel and perusing the judgments I find that the second respondent herein, who was examined as Pw1 supported by Exts.P1 to P7 had succeeded to establish that the revision petitioner borrowed Rs.40,000/-(Rupees Forty Thousand only) on 3/10/2004 from the second respondent and in discharge of the said liability Ext.P1 cheqe dated 18/1/2005 was issued and that when Ext.P1 was sent for collection it was bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memos. Though the second respondent caused notice demanding the discharge of liability and it was acknowledged by revision petitioner as evidenced by Ext.P7, the liability was not discharged.Hence the second respondent was justified in launching prosecution.Before launching prosecution he had complied the statutory requirements.When questioned under section 313 of Criminal Procedure Code the revision petitioner took up a defence that to facilitate one of his friends to borrow Crl.R.P.No.2923 of 2009 3 money the cheque was issued. However no evidence was let in to that effect. It is pertinent to note that the revision petitioner remained silent after acknowledging the notice demanding discharge of liability. The conduct of the revision petition shows that in fact he had no good defence at all. I find that the courts below correctly appreciated the evidence and there is no good reason to interfere with the conviction under challenge. 3. According to learned counsel for revision petitioner the revision petitioner, who is in his late forties is devoid of any permanent source of income and that financial difficulties led him to face the prosecution and hence he is entitled to leniency in sentence.I find some merit in the submission made. I find that the sentence requires modification and is modified to imprisonment till rising of the court with direction to pay compensation. 4. In the result,the revision petition is allowed in part. While confirming the conviction, the sentence of simple imprisonment for one month is reduced to imprisonment till Crl.R.P.No.2923 of 2009 4 rising of the court. The direction to pay compensation is confirmed. In the event of default the revision petitioner shall undergo simple imprisonment for three months. The revision petitioner is granted three months' time for payment of the fine amount provided he executes a bond for Rs.15,000/- (Rupees Fifteen Thousand only) with two solvent sureties for like amount to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE ssn