IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.Rev.Pet.No. 349 of 2005() ----------------------------- CRA.70/2004 OF SESSIONS COURT, ALAPPUZHA CC.346/2000 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, AMABALAPUZHA .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------------------------------- VENUKUTTAN S/O. PURUSHAN, MADATHINKAL KAROOR, AMBALAPPUZHA. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENT/RESPONDENT/COMPLAINANT ---------------------------------------------------------------- 1. MUSTHAFA, PROPRIETOR, BROTHERS JEWELLERS, AMBALAPUZHA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== CRL.R.P. No.349 OF 2005 ===================== Dated this the 11th day of November 2008 O R D E R This revision petition is preferred against the judgment in Crl.A.No.70 of 2004 of the Sessions Court, Alappuzha. The said appeal was preferred against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in C.C.No.346 of 2000. The trial court convicted the accused and sentenced him to undergo simple imprisonment for 6 months and to pay compensation of Rs.40,000/- to the complainant under Section 357(3) Crl.P.C., which in turn has been confirmed by the appellate court. It is against that decision, the present revision is filed. 2. Heard the learned counsel for the revision petitioner. The case of the complainant is that the accused had borrowed a sum of Rs.40,000/- on 15.3.2000 and issued a cheque to him towards discharge of liability which when presented for encashment in June, 2000 was returned for want of sufficient funds. A notice was issued and as the amount was not paid, prosecution was initiated. On the other hand, the case of the revision petitioner appears to be that he had borrowed a sum of Rs.5,000/- from the Crl.R.P.349/2005 -:2:- complainant and had given a blank cheque and further the notice which is alleged to have been sent contains nothing inside and it was only a blank cover. 3. In the trial court, PW1 and DW1 were examined. Exts.P1 to P6 and D1 were marked. The complainant, viz., PW1 had deposed in tune with the complaint and also had proved the dishonour of the cheque as well as issuance of notice. The trial court analyzed the evidence of PW1 and DW1 and arrived at a decision that the complainant has succeeded in proving the execution of the cheque and thereby he is entitled to presumption under Sections 118 and 119 of the N.I.Act. Though it is a rebuttable presumption as no acceptable evidence had been adduced by the defence so as to rebut it. So far as it related to the notice, the courts below found that if really he had only received a blank cover by registered post, he would not have kept idle and at least should have sent a letter intimating that no contents had been received. The court was not prepared to accept that contention that no notice had been received. Further the scope of interference by a revisional court is very limited and unless there is material irregularity, illegality or perversity or total mis-appreciation of evidence it cannot substitute the factual finding concurrently held by the courts below. From the materials I hold that the complainant had succeeded in proving that the revision Crl.R.P.349/2005 -:3:- petitioner has committed offence under Section 138 of the NI Act. 4. Now turning to the sentence, the trial court has convicted the petitioner to undergo simple imprisonment for six months and to pay a fine of Rs.40,000/- as compensation. It appears to be on the higher side and some leniency can be shown. Therefore I modify the sentence to simple imprisonment for one day till the raising of the court and convert the compensation under Section 357(3) as one into fine of Rs.40,000/- which on realisation be given to the complainant. In the result, the revision petition is disposed of as follows:(1) The conviction under Section 138 is upheld.(2) The sentence is modified whereby the revision petitioner is sentenced to undergo simple imprisonment for a period of one day, i.e. till the raising of the court and to pay a fine of Rs.40,000/- which on realisation be disbursed to the complainant and in default, the petitioner has to undergo S.I. for two months. The petitioner shall himself appear before the trial court to receive the sentence and for payment of fine on 5.2.2009. In case of default, the trial court shall execute the sentence. M.N.KRISHNAN, JUDGE Crl.R.P.349/2005 -:4:- Cdp/-