IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 Crl.Rev.Pet.No. 1517 of 2003(A) ------------------------------ CRA.333/1998 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.599/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- K.P. HAMZA, AGED 60, S/O. MUHAMMED, SUBAIDHA BAITH, BOAT PALAM, AZHIKKAL P.O., KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT: RESPONDENT/COMLPLAINANT/STATE: --------------------------------------------- 1. V. RAVINDRAN, S/O. N. SHANKUNNI NAMBIAR AGED 58, RETD.HON.CAPTIAN, PADIKKOROTH, P.O. EDAKKAD, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 31/03/2010 PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 6614 OF 2003 IN CRL.R.P. NO. 1517 OF 2003 DISMISSED. SD/-M.L.JOSEPH FRANCIS, JUDGE 31.3.2010 M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1517 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2010 O R D E R The revision petitioner is the accused in C.C.No. 599 of 1996 before the Judicial First Class Magistrate Court - I, Kannur. C.C. 599 of 1996 is a private complaint instituted by the respondent/complainant against the revision petitioner for an offence punishable under Section 138 of the N.I. Act. 2. The case of the complainant in brief is that the accused had borrowed a sum of Rs.70,000/- from the complainant promising to repay the amount at the earliest. On his failure to pay the amount, the accused issued a cheque No. 8980 dt.20.6.1996 for Rs.70,000/- drawn on the Cannanore Co- operative Urban Bank Ltd. in favour of the complainant. On presentation of the said cheque for collection at Vijaya Bank, Cannanore, it was dishonoured with the endorsement 'funds Crl.R.P.No. 1517 of 2003 2 insufficient'. Thereafter, the complainant issued a lawyer notice on 29.6.1996 demanding payment of the amount covered by the cheque, along with notice charges. The accused received the same on 2.7.1996 and as no payment was made within the statutory period, the complaint was lodged on 31.7.1996. 3. The accused entered appearance and contested the case. The case set up by the accused was that he had borrowed only Rs.5,000/- from the complainant and that he had issued a blank cheque in respect of such borrowal. Thereafter the accused had paid the entire amount along with interest and despite the same, the blank cheque was not returned. It is the said blank cheque which the complainant has misused and presented before the bank after inserting huge amount, which was not actually due from the accused. 4. In the trial court the complainant was examined as PW1 and Exts.P1 to P5 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, Crl.R.P.No. 1517 of 2003 3 found that the accused has committed an offence punishable under Section 138 of the N.I. Act and he was convicted and sentenced to undergo simple imprisonment for four months. Against that conviction and sentence the accused filed Crl.A.No.333 of 1998 before the Additional Sessions Court, Thalasserry, which was allowed in part confirming the conviction, but modifying the sentence and reduced the same to simple imprisonment for one month. Against that judgment the accused filed this Crl.R.P. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent/complainant. 6. The learned counsel for the revision petitioner reiterated the contentions in support of the revision petition. 7. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant and the complainant had validly complied with clauses (a) and (b) of proviso to Section 138 of the N.I. Act and that the revision petitioner/ Crl.R.P.No. 1517 of 2003 4 accused failed to make the payments within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. That conviction has been recorded after careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 8. The learned counsel for the revision petitioner submits that the revision petitioner is aged more than 60 years and he is suffering from various ailments and to impose a sentence of imprisonment is harsh and excessive. Considering the facts and circumstances of the case, I am of the view that sentencing the revision petitioner to pay a fine of Rs.70,000/- would meet the ends of justice. 9. Accordingly this Revision Petition is allowed in part and the conviction of the accused in C.C.No. 599 of 1996 on the file of the J.F.M.C.-I, Kannur under Section 138 of the N.I. Act is confirmed. Crl.R.P.No. 1517 of 2003 5 The sentence is modified and the accused is sentenced to pay a fine of Rs.70,000/- only. The said fine shall be paid as compensation under Section 357(1) Cr.P.C. to the complainant. The revision petitioner/ accused is permitted either to deposit the said fine amount before the court below or directly pay the compensation to the complainant, within six months from today and produce a memo to that effect before the trial court in case of direct payment. If the accused fails to deposit or pay the amount within the aforesaid period, he shall suffer simple imprisonment for one month by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm