IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 Crl.Rev.Pet.No. 812 of 2002() ----------------------------------------- S.T.1386/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR CRA.8/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- K.K.BALAKRISHNAN, M/S.KUMAR ENTERPRISES, KALAMURI, PERINJANAM, THRISSUR. BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE --------------------------------------------------------------------------------- 1. STANES TYRE & RUBBER PRODUCTS LTD., THRISSUR, REPRESENTED BY BRANCH MANAGER, V.M.VISWANATHAN. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SMT.PRIYA KRISHNAMOORTHY SMT.PRIYA MANJOORAN R2 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts P.S. GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.812 of 2002 --------------------------------------- Dated this 17th day of January, 2011 ORDER Revision petitioner is the accused in S.T.No.1386 of 1996 on the file of the Judicial Magistrate of First Class-III, Thrissur. He was prosecuted by the first respondent alleging offence under Sec.138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months with a direction to pay `.12,000/- as compensation to the first respondent under Sec.357(3) of the Code of Criminal Procedure with a default sentence. Though he preferred Crl.Appeal No.8 of 2000, he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence this revision petition was filed. 2. I have heard Adv. Sri. T. M Chandran, learned counsel appearing for the revision petitioner and perused the judgments of the courts below. Having heard the learned counsel and perusing the judgments of the courts below, I find that the first respondent by his evidence as PW1 supported by the evidence of Pws.2 to 4 and Exts.P1 to P13 had succeeded to establish that the revision petitioner owed `.11,660/- to the first respondent and in Crl.R.P.No.812 of 2002 -: 2 :- discharge of that liability Ext.P1, cheque was issued and that when presented for collection the same was returned dishonoured for insufficiency of funds as evidenced by Ext.P3 memo supported by the evidence of PWs.2 and 3. Though first respondent caused a notice demanding discharge of liability, no liability was discharged. Revision petitioner had a total denial when questioned under Sec.313 of the Code of Criminal Procedure. The evidence of PW3 would show that Ext.P1, cheque was issued from an account maintained by the revision petitioner in Catholic Syrian Bank. Revision petitioner has no good explanation as to how Ext.P1 cheque was happened to be issued in favour of first respondent. In the above circumstance, evidence of PW1 assumes significance. The evidence of PW1 is further supported by the presumptions under Secs.118 and 139 of the Negotiable Instruments Act that it was drawn for valuable consideration and issued in discharge of the liability. The revision petitioner had not cared to rebut the legal presumptions. In the above circumstances I find that the courts below had correctly arrived at a finding that Ext.P1 cheque was issued by the revision petitioner in discharge of the liability. The evidence of PWs.1 to 3 and Exts.P2 and P3 would show that Ext.P1 was returned dishonoured for insufficiency of funds. Despite the notice, the liability was not discharged. In the above Crl.R.P.No.812 of 2002 -: 3 :- circumstance I find no reason to interfere with the finding of guilt arrived at by the courts below. The finding is based upon cogent evidence. As regards the sentence, according to the learned counsel because of the financial difficulties the revision petitioner cannot discharge the liability and revision petitioner is devoid of any permanent source of income. Learned counsel sought for a little leniency in sentence. I find merit in the submission and that a sentence of imprisonment till the rising of the court with fine would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, sentence is reduced to imprisonment till the rising of the court with a fine of `.13,000/- (Rupees Thirteen Thousand Only). In default of payment of fine the revision petitioner shall undergo simple imprisonment for three months. On realisation of the fine, `.12,000/- shall be paid to the first respondent as compensation. Petitioner is granted three months' time to remit the fine. In the event any amount is deposited before the trial court, that shall be given credit towards fine. (P.S. GOPINATHAN, JUDGE) Sbna/-