IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 Crl.Rev.Pet.No. 1364 of 2003() ------------------------------------------- CRA.126/2000 of ADDL. SESSIONS (FAST TRACK COURT-II, PALAKKAD CC.237/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- P.S. RAVI, S/O. LATE SUKUMARAN, PAPPADI, DHONI POST, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS/COMPLAINANT AND NON-PARTY ------------------------------------------------------------------------------------------------- 1. K.K. RAJESH, S/O. K.K. KARUNAKARAN, KALATHIL HOUSE, MUTTIKULANGARA, PALAKKAD 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.A.R.GANGADAS. R2 BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.1364 of 2003. = = = = = = = = = = = = Dated this the 5th day of April, 2010. O R D E R The revision petitioner was prosecuted by the first respondent in CC.No.237/1998 on the file of the Judicial Magistrate of the First Class-III, Palakkad for offence under Section 138 of the Negotiable Instruments Act with an allegation that on 5.10.1997 the revision petitioner borrowed Rs.10,000/- and in discharge of that liability Ext.P1 cheque dated 24.2.1998 drawn on Akathethara Service Co-operative Bank Ltd., was issued and that when sent for collection through Indian Overseas Bank, Palakkad it was returned bounced for insufficiency of funds and that despite the notice demanding discharge, the liability was not discharged. 2. Since the revision petitioner pleaded not guilty, he was sent for trial. Pws.1 and 2 were examined and Exts.P1 to P8 were marked. The revision petitioner took up Crl.R.P.No.1539 of 2009. -: 2 :- a plea of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived a finding of guilty. Consequently, the revision petitioner was convicted for offence under Sec.138 of the Negotiable Instruments Act and sentenced to simple imprisonment for one month and to pay Rs.20,000/- as compensation to the first respondent under Sec.357(3) of the Code of Criminal Procedue. Though the revision petitioner preferred Crl.Appeal No.126/2000 he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 3. According to the learned counsel for the revision petitioner, the statutory notice, copy of which is marked as Ext.P3 was issued out of time and hence the prosecution is not sustainable. Ext.P3 lawyer notice is dated 24.3.1998. Ext.P6, the memo issued from the bank, is dated 5.3.1998. This was clearly noticed by the courts below. It is in that Crl.R.P.No.1539 of 2009. -: 3 :- circumstance, Pw2, the then Manager of the Indian Overseas Bank was examined. He had deposed that Ext.P1 cheque was presented for collection through his bank and it was returned dishonoured for insufficiency of funds and that Ext.P6 was communicated from the bank only on 16.3.1998. According to him, the delay was due to an omission from the bank. It is in support of the oral evidence of Pw2, Ext.P8, an extract of the register maintained by the bank was produced. Going by the evidence of Pw2 and Ext.P8, the courts below arrived a finding that Ext.P6 was communicated to the first respondent only on 16.3.1998. That finding is absolutely correct. Period for issuing notice has to be calculated from that date. That being so, the notice dated 24.3.1998 was found issued in time. I find little reason to interfere with the concurrent finding of facts regarding the date of issue of the notice. I find no room for an alternate finding. So, the plea of the learned counsel for the revision petitioner that the notice was issued out of time Crl.R.P.No.1539 of 2009. -: 4 :- is devoid of merit. 4. The learned counsel for the revision petitioner further contended that the borrowal was only Rs.2,000/- and that the liability was later discharged. In support of that contention absolutely there is no material available on record. It is crucial to note that the revision petitioner didn't care to respond to the notice demanding discharge of the liability. In the event, the liability was anything lesser than the amount for which the cheque was drawn and what was mentioned in the notice or that it was discharged as now contended, the revision petitioner would have responded to the notice. The silence of the revision petitioner after acknowledging the notice persuades me to arrive at an inference that in fact, the revision petitioner had no good defence at the time when he received the notice and that the defence raised in trial is the result of an after thought without the support of any evidence. On the other hand, the evidence of the first respondent regarding Crl.R.P.No.1539 of 2009. -: 5 :- the consideration and liability is supported by the presumptions under Sec.118 and 138 of the Negotiable Instruments Act. There isn't even an attempt to rebut that presumption. So, I find no reason to interfere with the concurrent finding of the courts below. There is no error, illegality or impropriety in the findings. The conviction is based upon cogent evidence. 5. Taking note that the revision petitioner is an agriculturist and that an ordinary money transaction had put him to the trouble of facing the prosecution, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till the rising of the court and to pay compensation as ordered by the courts below would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court. The order to pay compensation is sustained. The revision Crl.R.P.No.1539 of 2009. -: 6 :- petitioner is granted two months time to deposit the compensation amount. If any amount is already deposited, the first respondent is at liberty to withdraw the same. P.S.GOPINATHAN (Judge) Kvs/-