IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 576 of 2002() ----------------------------- CRA.12/1995 of SESSIONS COURT, PATHANAMTHITTA CC.673/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER/APPELLANT-ACCUSED: ----------------------------------------------- JACOB JOHN, PALAMOOTTIL VADAKKETHIL, OONNUKAL, MATHUR P.O., OMALLOOR VILLAGE. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------- 1. THOMASKUTTY, GRACE BHAVAN, PARKODU MURI, ADOOR VILLAGE. 2. STATE OF KERALA, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SUNIL JACOB JOSE R2 BY BY PUBLIC PROSECUTOR, SRI.AMJED ALI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.576 of 2002 ---------------------------------------- Dated this the 16th day of March 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. 2. The cheque was for an amount of Rs.70,000/-. Signature in the cheque is admitted. Handing over of the cheque in connection with creation of a financial liability is also admitted. But contention is raised that the cheque was not issued for the due discharge of any legally enforcible debt or liability; but was issued as security when the accused entered into a financial transaction with the father-in-law of the complainant. That cheque is being misused, it is alleged. 3. Notice of demand though duly received and acknowledged did not evoke any response. The complainant examined PWs 1 to 4 and proved Exts.P1 to P7. The accused examined a witness as DW1. PW1 is the complainant. PWs 2 and 3 are the Managers of the drawing and collecting banks. DW1 claims to have seen the real transaction between the accused and the father-in-law of the complainant. The courts Crl.R.P.No.576/02 2 below concurrently came to the conclusion that the evidence on the side of the complainant can be safely believed and that shows that there was a legally enforcible debt/liability and for discharge of the same, the cheque was issued. Accordingly, the courts below proceeded to pass the impugned concurrent judgments. 4. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner reiterates the contention that the cheque was not issued by the accused to the complainant for the due discharge of any legally enforcible debt/liability. It was issued as a blank signed cheque as security when the accused entered into a transaction with the complainant's father-in-law. The evidence of DW1 should have been believed by the courts, it is contended. 5. I have rendered my anxious consideration to the contentions raised. I am unable to agree with the learned counsel for the petitioner. The oral evidence of PW1 clearly shows the circumstances under which the cheque was received by the complainant. That version of the complainant is eminently supported by the absence of a response to the notice Crl.R.P.No.576/02 3 of demand which was duly served on the accused. The presumption under Section 139 of the N.I.Act stares at the accused. The evidence of DW1 was found by the courts below to be not convincing for acceptance. I am unable to agree that there are any circumstances justifying interference with the findings of fact rendered concurrently by the court below. 6. The learned counsel finally submits that the petitioner is entitled for leniency. The sentence imposed is S.I for six months and compensation of Rs.50,000/-. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I.Act in the decision in Anilkumar vs.Shammi [2002(3)KLT 852]. I am satisfied that leniency can be shown to the petitioner/accused. Substantive sentence of imprisonment can be modified. An appropriate modification of payment of the direction for compensation coupled with a default sentence can be imposed. 7. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I.Act are upheld. Crl.R.P.No.576/02 4 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.70,000/- (Rupees seventy thousand only) as compensation and in default, to undergo S.I for a period of two months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioner shall have time till 30/04/2009 to make the payment. The impugned sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on or before 02/05/2009 to serve the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr Crl.R.P.No.576/02 5 The petitioner now faces a sentence of imprisonment till rising of court/S.I for a period of ............ and there is a direction to pay the actual cheque amount as compensation and in default to undergo S.I for a period of .......... months. Crl.R.P.No.576/02 6 R.BASANT, J Crl.R.P.No.576 of 2002 ORDER 16th DAY OF MARCH 2009