IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 3189 of 2005() ------------------------------ CRA.531/2004 of SESSIONS COURT, KOZHIKOE ST.377/2004 of SPL. JUDICIAL FIRST CLASS MAGISTRATE COURT, KOZHIKODE. .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------------------------------- P.JAYARAM, PALIPUNNATH HOUSE, GANDHI ROAD, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS/ RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------- 1. K.GOPALAN, S/O.IMBICHIKUTTAN, `KARUNA', MANARI, KALLAI P.O., KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI. THOMAS JOHN AMBOOKEN, P.P. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. R.P. No.3189/05 ORDER ON CRL.M.A. NO.21524/05 IN CRL.R.P. No.3189/05 DISMISSED 3.11.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- Crl.R.P. No. 3189 OF 2005 --------------------- Dated this the 3rd day of November, 2008 ORDER This revision petition is preferred against the judgment in Crl. Appeal 531/04 of Sessions Judge, Kozhikode. It was an appeal preferred against S.T. 377/04 of the Special Judaical First Class Magistrate, Kozhikode, whereby the learned Magistrate convicted the accused under section 138 of the Negotiable Instruments Act and directed him to undergo simple imprisonment for six months and also to pay a compensation of Rs.89,000/-. In appeal, the learned Sessions Judge modified the sentence of imprisonment by reducing it from six months to two months. It is against that decision, the criminal revision petition is preferred. 2. I have heard the learned counsel for the revision petitioner and also perused the judgments of both the courts below. Ext.P1 is the cheque said to have been issued for discharging the liability. It was dishonoured and that was followed by initiation of prosecution under section 138 of the Negotiable Instruments Act. Evidence has been tendered that the amount was borrowed and cheque has been Crl.R.P. No.3189/05 2 issued. Both the courts below, on appraisal of the evidence, had arrived at the decision regarding the execution of the cheque and that it was issued for discharging the liability. It also held that the presumptions under sections 118 and 139 of the Negotiable Instruments Act remained unrebutted. Therefore, there is no illegality, irregularity or perversity or misappreciation of evidence to arrive at a decision regarding the offence. So, I confirm the sentence under section 138 of the Negotiable Instruments Act. 3. Learned counsel for the revision petitioner then submits that there has not been a deliberate act and it was the circumstances beyond control that have led to the delay in making payment and therefore prays for some leniency. I feel the said request requires consideration. Interest of justice can be met by awarding nominal imprisonment with a further direction to pay the fine which on realisation can be given to the complainant. Therefore the revision petition is disposed of as follows: (i) The conviction under section 138 of the Negotiable Instruments Act is confirmed. (ii) The revision petitioner is directed to undergo imprisonment Crl.R.P. No.3189/05 3 for a day, i.e., till the rising of the court, and to pay the fine of Rs.89,000/- which on realisation can be given to the complainant. If the fine amount is not paid, the revision petitioner has to undergo simple imprisonment for a period of two months. (iii) The revision petitioner shall appear before the court below on 2.2.2009 to receive the sentence and for payment of fine. If the petitioner commits default, the trial court is directed to execute the sentence. The amount, if any, in deposit shall be treated as part of fine and it can be disbursed to the complainant. M.N.KRISHNAN, JUDGE vps Crl.R.P. No.3189/05 4