IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 Crl.Rev.Pet.No. 1228 of 2004() ------------------------------ CRA.475/2002 of ADDL.SESSIONS COURT, KOTTAYAM CC.152/2001 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- --------------------------------------------------------------------- P.K. SHAJI, S/O. KUNJU MOIDEEN, PUTHENPURAKKAL HOUSE, ERATTUPETTA - 2. BY ADV. SRI.V.K.MOHAMMED YOUSUF RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE :- ----------------------------------------------------------------------------------- 1. JOSEPH JOSEPH, VALLIYANTHADATHIL HOUSE, THIDANAD P.O., ERATTUPETTA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt P. S. GOPINATHAN, J. ~~~~~~~~~~~~~~~~ Crl.R.P. No.1228 of 2004 ~~~~~~~~~~~~~~~~~ Dated this the 22nd day of July 2011 O R D E R The revision petitioner is the accused in C.C.No.152 of 2001 on the file of the Judicial Magistrate of the First Class, Erattupetta. He was prosecuted by the first respondent alleging offence under Sec.138 of the Negotiable Instruments Act. Since he pleaded not guilty, he was sent for trial. On appraisal of the evidence of PW1 supported by Exts.P1 to P6 and DWs.1 and 2, the learned Magistrate arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for one year. 2. In Crl.A.No.475 of 2002, the Additional Sessions Judge, Kottayam while confirming the conviction reduced the sentence to simple imprisonment for three months with direction to pay `85,000/- as compensation to the 1st Crl.R.P. No.1228 of 2004 -: 2 :- respondent. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was preferred. 3. I have heard Sri.V.K.Mohammed Yousuf, the learned counsel appearing for the revision petitioner and perused the judgment of the courts below. Going by the materials on record, I find that the revision petitioner owed a sum of `85,000/- to the first respondent. In discharge of that liability, Ext.P1 cheque dated 20.1.2001 drawn on Federal Bank, Aruvithura Branch was issued. When presented for collection, it was returned dishonoured for insufficient funds as evidenced by Exts.P2 and P3 memos. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P4 was caused. Despite the acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. Dws.1 and 2 were examined by the revision petitioner in support of his plea that he borrowed only Rs.30,000/- through DW1 and it was discharged. In the absence of any evidence especially regarding the discharge of liability, the courts below rightly disbelieved the defence Crl.R.P. No.1228 of 2004 -: 3 :- evidence. It is pertinent to note that the revision petitioner remained silent after acknowledging the notice demanding discharge of the liability. The silence of the revision petitioner looms large. Had the defence advanced is true, in the normal course, the revision petitioner should have retorted to the notice. The silence of the revision petitioner after acknowledging notice was persuades me to arrive at a presumption that in fact the revision petitioner had no good defence at the time when the notice was acknowledged and that the defence advanced during the trial is the result of an after thought. The evidence of Dws.1 and 2 is not at all sufficient to rebut the presumptions under Secs.118 and 139 of the Negotiable Instruments Act that Ext.P1 was drawn for a valuable consideration and issued in discharge of the liability. On an anxious consideration of the evidence, I find no error, illegality or impropriety committed by the courts below in appreciating the evidence. The conviction under challenge is based upon cogent evidence and it requires no interference. Taking note of the fact that the liability covered by Ext.P1 arose out of business transaction and that financial difficulties Crl.R.P. No.1228 of 2004 -: 4 :- led him to face the prosecution, I find that the revision petitioner is entitled to a little leniency in sentence and that sentence of imprisonment till the rising of the court with a fine of `90,000/- would meet the ends of justice. In the result, the revision petition is disposed of. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court with a fine of `90,000/- (Rupees Ninety Thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months. Out of the fine amount, if collected, `85,000/- shall be paid to the first respondent as compensation. The revision petitioner is granted four months time to remit the fine. Till then, the bail bond executed by him shall remain in force. If any amount is already deposited, that shall be given credit to. P. S. GOPINATHAN, JUDGE. Jvt