IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3985 of 2006(C) ------------------------------- CRA.215/2005 of SESSIONS COURT, THODUPUZHA CC.166/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOSEPH GEORGE, S/O.GEORGE, G.186, PANAMPALLY NAGER, ERNAKULAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT AND THE STATE ---------------------------------------------------------------------------- 1. C.H.ASHARAF, CHETTEDATHUKUDIYIL, PROPRIETOR, NAVEEN EARTH MOVIE, ADIMALY. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 3985 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Thodupuzha in Crl.A.215/05. The said appeal had arisen out of the conviction and sentence passed by the Judicial First Class Magistrate, Adimaly in C.C.166/07. 2. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/- and had issued a cheque towards discharge of the liability which when presented for encashment returned with endorsement insufficiency of funds. A statutory notice was issued and it was refused and even thereafter no payment was made and therefore action was initiated u/s 138 of the N.I. Act. 3. The defence appears to be that no cheque has been handed over to the complainant but a cheque was given to one Santhosh Kumar as a security and that has been misused by the complainant to lodge action against the Cr.R.P. 3985 OF 2006 -:2:- revision petitioner. Both the Courts below after elaborately considering the materials held that the complainant had established the case and therefore found the revision petitioner guilty u/s 138. 4. One of the main grievance that had been ventilated is that the Courts below did not give a chance to examine Santhosh Kumar to whom a blank cheque was given as security and therefore the revision petitioner had been deprived of a fair trial in a criminal case. The revision petitioner also wanted to cite the witness from Nagpur for examination on which the Court ordered the revision petitioner to deposit first class A/c batta with which he did not comply and therefore the Court was constrained to close that application. S.207 of the Criminal Rules of Practice cast the burden on the revision petitioner to pay the batta fixed by the Court. Most probably the Courts below felt that it was not really necessary or that the non-compliance is only to protract the case. The appellate court also had not entertained that request. The scope of interference at the Cr.R.P. 3985 OF 2006 -:3:- revision stage has to be confined to illegality, impropriety or mis-appreciation of evidence on account of the perverse approach and not for entertaining or converting the Court into a re-trial jurisdiction. Here PW1 was examined before the Court below. The evidence of PW1 was accepted regarding the execution of the cheque and the Courts found that in the light of the proof of execution of the document, the presumption u/Ss. 118 and 139 of the N.I. Act will come into play unless it is rebutted. The Courts were not satisfied with the explanation regarding the rebuttal and therefore concluded regarding the offence committed by the revision petitioner u/s 138. Such an approach cannot be said to be illegal which requires interference at the hands of a revisional Court. Therefore I confirm the finding u/s 138. 5. Now regarding the question of sentence. The trial court had convicted the revision petitioner to undergo simple imprisonment for three months and to pay a compensation of Rs.1,50,000/- and in default to undergo simple imprisonment for one month. The revisional Court had reduced the Cr.R.P. 3985 OF 2006 -:4:- sentence of imprisonment from three months to one till the raising of the Court. I feel the appellate court had exercised its jurisdiction only properly. But I may like to convert the compensation u/s 357(3) to one of fine and therefore the the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.1,50,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. (4) The revision petitioner shall appear before the trial court to receive the sentence on 5.2.2009 and also for payment of fine. In default the trial court is directed to execute the sentence. Cr.R.P. 3985 OF 2006 -:5:- (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-