IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Crl.Rev.Pet.No. 517 of 2002() ----------------------------- CRA.145/2000 of V ADDL.SESSIONS COURT, ERNAKULAM CC.211/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER: REVN.PETITIONER/APPELLANT/ACCUSED: ------------------------------ V.P. JOY, VAYALATHUMPOTTAYIL HOUSE, VATTUKKUNNU, KANAYANNUR P.O., CHOTTANIKKARA VIA., KANAYANNUR TALUK. BY ADV. SRI.T.KURIAKOSE PETER SRI.ABRAHAM P.GEORGE RESPONDENTS: RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------- 1. E.V. JOHNY, PHILIM STUDIO, PALLITHAZHAM, MULANTHURUTHY. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.I.KESAVAN FOR R1 SRI.BIJU K. VAVA FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. NO.3391/2002 IN CRL.RP. NO.517/2002 DISMISSED 23.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.A.TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.517 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June 2008 ORDER Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.1 herein. The trial court convicted and sentenced the petitioner to undergo simple imprisonment for six months and to pay Rs.22,000/- to the complainant as compensation. The above order was confirmed in appeal by the sessions court. Hence this revision petition. 2. The case of the complainant was that the accused had issued Ext.P1 cheque in discharge of the debt which he owed in connection with settlement of a case in C.C.440/96 on the file of the Judicial Magistrate of First Class, Ernakulam. While the above case was pending, the accused had paid Rs.8,000/- in cash and issued Ext.P1 cheque for Rs.22,000/- in discharge of the balance liability. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account. The statutory demand notice did not evoke any Crl.R.P.No.517 OF 2002 :: 2 :: response. 3. Complainant was examined as PW1 and Exts.P1 to P5 and Ext.C1 were marked in the case. 4. The defence set up by the accused was that there was no legally dischargeable debt or liability. According to the petitioner/accused, he had handed over a blank signed cheque to the complainant as security in connection with a loan transaction between the complainant and another. The trial court as well as the appellate court did not believe the above version given by the accused, especially since no evidence was adduced by him to substantiate the above contention. Significantly, the accused had admitted his signature in Ext.P1 cheque. Therefore, the courts below noticed that the accused had not discharged the burden cast upon him. Moreover, the presumption available under Section 139 was heavily in favour of the complainant. 5. I have carefully perused the oral and documentary evidence available on record and also the orders passed by the trial court and the appellate court. In my view, the courts Crl.R.P.No.517 OF 2002 :: 3 :: below were justified in holding the petitioner guilty under Section 138 of the Act. Therefore, the order of conviction is confirmed. But having regard to the peculiar facts and circumstances, I am satisfied that the petitioner can be granted one more opportunity to avoid the substantive sentence of imprisonment imposed on him. Therefore, petitioner shall suffer imprisonment till the rising of the court, in lieu of imprisonment of six months imposed on him. He shall also pay Rs.30,000/- as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure. Petitioner shall appear before the trial court on September 15, 2008 and remit the amount of compensation. The learned Magistrate shall ensure that petitioner undergoes imprisonment till the rising of the court on that day. If the petitioner fails to appear and remit the compensation, the sentence imposed on him by the trial court shall be sustained. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.517 OF 2002 :: 4 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.517 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 23rd June 2008