IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 513 of 2001() ----------------------------- CRA.27/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.452/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- K.V.JOSEPH, KAITHAVALAPPIL VEEDU, MARAVAKKAD, CHELLANAM P.O., CHERTHALA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S)/RESPONDENTS/COMPLAINANTS: --------------- 1. RAJU MARSHALL, ARAKKAL VEEDU, ARTHUNKAL P.O., CHERTHALA. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI C.S.HEMALAL FOR R1 PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.513 of 2001 -------------------------------------- Dated this the 1st day of December, 2008. ORDER First respondent and counsel are absent There is no representation. Heard counsel for the revision petitioner and the Public Prosecutor. 2. Following points arise for consideration:- I. Whether revision petitioner issued the cheque in question for discharge of legally enforceable debt/liability? II. Whether sentence is excessive? 3. Point No.I. Case of the first respondent is that revision petitioner borrowed Rs.10,000/- from him on 9.4.1995 and issued cheque dated 10.4.1995 drawn on Union Bank of India,Kannamaly Branch, that cheque was presented for encashment through State Bank of Travancore, Cherthala on 21.8.1995 but, was dishonoured for insufficiency of funds. First respondent issued notice to the revision petitioner on 2.9.1995 intimating the dishonour and demanding payment of the amount. Though notice was served on revision petitioner on 5.9.1995, he neither responded to the notice nor repaid the amount. Hence the complaint on 10.10.1995. First respondent proved Exts.P1 to P6. Ext.P1 is the cheque dated 10.4.1995. Dishonour of cheque for insufficiency of funds is proved by Crl.R.P.No.513/2001 2 Exts.P2 to P4. Issuance and service of notice on the revision petitioner are proved by Exts.P5 and P6. First respondent gave evidence as PW1 and testified his case. Case pleaded by the revision petitioner is that he had not borrowed any amount from the first respondent, nor issued the cheque. He had business in prawns with the first respondent and in the course of that business, issued signed blank cheque as security. Revision petitioner examined DWs 1 to 3. DWs 1 and 2 are the wife and brother respectively of the first respondent. DW 3 is a worker of the first respondent. Learned counsel for revision petitioner contended that in the light of the evidence on record, courts below were not justified in concluding that the cheque was issued for the discharge of legally enforceable debt or liability. 4. I have gone through the evidence of DWs 1 to 3. DWs 1 to 3 have not supported the revision petitioner. Evidence of DWs 1 and 2 is only to the effect that revision petitioner had business in prawns with the first respondent which, first respondent also did not dispute. DWs 1 and 3 have no information about the transaction related to Ext.P1, cheque. But DW2 has given evidence that revision petitioner borrowed the amount from the first respondent and issued the cheque. On going through the evidence, I am not inclined to accept the contention of the learned counsel for revision petitioner that the finding entered by the courts below are incorrect. There is also the added circumstance that inspite of being served with notice of demand, revision Crl.R.P.No.513/2001 3 petitioner did not respond to it. I find no reason to interfere with the concurrent finding entered by the courts below that revision petitioner issued the cheque for the discharge of legally enforceable debt and that the presumption under Section 139 of the Act is not discharged by the revision petitioner. 5. Point.No.II. Learned magistrate sentenced the revision petitioner to undergo simple imprisonment for one month and to pay fine of Rs.5,000/-. Appellate court confirmed the sentence. It is argued by the learned counsel for revision petitioner that sentence imposed is excessive. 6. Considering the nature of the offence and the amount involved, I am inclined to think that imprisonment till rising of the court and direction for payment of compensation are sufficient to meet the ends of justice. Sentence therefore, is modified accordingly. Resultantly, this revision petition is allowed to the extent that sentence imposed on the revision petitioner is modified as under:- i. Substantive sentence is modified as simple imprisonment till rising of the court. ii. Revision petitioner is directed to deposit in the trial court Rs.15,000/- (Rupees Fifteen thousand only) for payment to the first respondent as compensation within two months from this day failing which, he shall undergo simple imprisonment for two months. Crl.R.P.No.513/2001 4 iii. Revision petitioner shall surrender in the trial court on 7.2.2009 to receive the sentence. iv. Bail bond is cancelled. Crl.M.P.No.2456 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.513/2001 5 Thomas P.Joseph, J. Crl.R.P.No.513 of 2001 ORDER 1st December, 2008.