IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1666 of 2006() -------------------------------------- CRA.159/2005 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CC.750/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONERS: APPELLANT/ACCUSED ------------------------------------------------------------------- SHAJI KURUVILLA, THANAVELIL HOUSE, MANGANAM P.O., KOTTAYAM. BY ADV. SRI.V.P.MOHAMMED NIYAS RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. M.S.PRASAD, NISHANTHA HOUSE, POOVANTHURUTH P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN ADV. SRI.M.P.MADHAVANKUTTY FOR R1 SMT.C.V.BINDU FOR R1 SMT.ANU VENU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1666 of 2006() C.M.APPL. NO. 4626 OF 2006 IN CRL. R.P. NO. 1666 OF 2006 DISMISSED. SD/- M.N.KRISHNAN, JUDGE 18.12.2008 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- Crl.R.P.No. 1666 OF 2006 --------------------------------- Dated this the 18th day of December, 2008 O R D E R This Criminal Revision Petition is preferred against the judgment of the Additional Sessions Judge (Adhoc)-I, Kottayam in Crl.Appeal No. 159/2005. The said appeal was preferred against the conviction and sentence passed by Judicial First Class Magistrate Court -II (Mobile), Kottayam in C.C. 750/2004. The trial court found the accused guilty under Section 138 and sentenced him to undergo Simple Imprisonment for three months and to pay a compensation of Rs. 42,000/- and in default to undergo Simple Imprisonment for one month. The said conviction and sentence was challenged in appeal which met with dismissal of the appeal. It is against that decision the Criminal Revision Petition is preferred. 2. Heard the learned counsel for both sides. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs. 42,000/- and towards discharge of the liability had issued a cheque, which when presented for encashment returned with an endorsement of insufficiency of funds. After statutory notice, no payment was made and action was initiated under Section 138 of the Negotiable Instruments Act. The defence appears to be that Crl.R.P.No. 1666/2006 -2- Ext. P1 cheuqe was given as security to the complainant and that the revision petitioner borrowed only an amount of Rs. 10,000/- and had discharged that liability. The courts below after evaluating the materials found that execution of Ext. P1 cheque is proved and it is issued towards discharge of the liability and therefore also raised the presumptions under the law. Under Section 313 Crl.P.C, he was questioned and borrowal of Rs. 10,000/- was admitted. But his case was that of a blank signed cheque was handed over. PW1 was examined and nothing was brought to the notice so as to discredit his evidence. The trial court as well as the appellate court found that it is acceptable. On the other hand the evidence tendered by defence was not sufficient to rebut the presumption. It has also to be stated that the revision petitioner even did not send a reply notice which also speaks in volumes about the conduct of him. Therefore I do not find any ground to interfere with the decision rendered under Section 138 of Negotiable Instruments Act regarding conviction. 3. So far as the sentence is concerned, the learned counsel pleads that leniency be shown and some time may be given. After hearing both sides and considering the matter, I feel leniency can be shown by modifying the sentence to one of imprisonment till Crl.R.P.No. 1666/2006 -3- rising of the court and convert the compensation as that of fine of Rs. 42,000/- with default sentence. Therefore the Criminal Revision Petition is disposed of as follows: 1. The conviction under Section 138 is sustained. 2. The sentence is modified and the revision petitioner is sentenced to undergo Simple Imprisonment for one day that is till the rising of the court and pay a fine of Rs. 42,000/- which on realisation shall be disbursed to the complainant and in default of payment of fine the revision petitioner shall undergo Simple Imprisonment for one month. 3. The revision petitioner shall present himself before the trial court to receive the sentence and pay the fine on 16.3.2009, failing which the trial court shall execute the sentence. 4. If any amount is deposited, that shall be treated as part of the fine and the balance need be deposited and the amount so deposited shall be disbursed to the complainant on appropriate application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm