IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Crl.Rev.Pet.No. 3183 of 2009 ------------------------------ CRA.349/2007 of ADDL.SESSIONS COURT (ADHOC) I, KASARAGOD DATED17.08.09 CC.867/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG DATED 22.08.07 .................... REVN. PETITIONER/APPELLANT/ACCUSED. -------------------------------------------------------- K.V.RAGHAVAN, AGED 60 YEARS, S/O.LATE KUNHIRAMAN, RESIDING NEAR RAILWAY STATION CHERUVATHUR P.O.,CHERUVATHUR,KSARAGOD DISTRICT. BY ADV. SMT.P.K.PRIYA RESPONDENTS/RESPONDENT/COMPLAINANT: --------------- 1. P.C.VIJAYAN MASTER, AGED 70 YEARS, S/O.P.SUBRAMANIYAN NAMBOODIRI, RESIDING AT VARAKOT VAYAL, PILICODE VILLAGE, P.O. PILICODE. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: shg/ P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.3183 of 2009. = = = = = = = = = = = = = Dated this the 13th day of October, 2009. O R D E R 1. The revision petitioner is the accused in C.C.No.867/2005 on the file of the Judicial First Class Magistrate-I, Hosdurg. The 1st respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after due trial, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three months. He was further directed to pay Rs.25,000/-, the cheque amount as compensation, to the 1st respondent under Section 357(3) of the Criminal Procedure Code. In appeal, the Additional Sessions (Ad- Hoc)I, Kasargode confirmed the conviction. But the substantive sentence was reduced to simple imprisonment for one month. Direction to pay compensation was confirmed. Assailing the legality, correctness and propriety Crl.R.P.No.3183 of 2009 2 of the above conviction and sentence as modified in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the 1st respondent, who was examined as PW1, supported by Exts. P1 to P4 had succeeded to establish that the revision petitioner owed a sum of Rs.25,000/- to the 1st respondent and in discharge of that liability, Ext.P1 cheque dated 30.05.2005 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Ext.P2 memo. Though a lawyer notice, copy of which was marked as Ext.P3, was caused demanding discharge of the liability and it was acknowledged by the revision petitioner as evidenced by Ext.P4 the liability was not discharged. There is no contra evidence. The revision petitioner has a defence that after delivering a blank cheque Rs.15,000/- was borrowed and that Rs.5,000/- was paid back. But no supporting evidence was adduced. Crl.R.P.No.3183 of 2009 3 Result is that the evidence of PW1 supported by Exts.P1 to P4 and the legal presumption under Section 118 and 139 of the Negotiable Instruments Act remains uncontroverted. No good reason to disbelieve him. I find that the courts below had correctly appreciated the evidence and arrived a finding of guilt. The conviction under challenge is unassailable. Taking note that the appellant is in his sixties, I find that the appellant is entitled to leniency in sentence and imprisonment till rising of the court with direction to pay compensation would be just and appropriate. 3. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court with direction to pay Rs.25,000/- as compensation to the 1st respondent. In default to pay compensation revision petitioner shall undergo simple imprisonment for four months. The revision petitioner is granted six months' time Crl.R.P.No.3183 of 2009 4 for payment of compensation, provided, he executes a bail bond for Rs.15,000/- (Rupees fifteen thousand only) with two solvent sureties each of like sum to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE. shg/