IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1667 of 2006() --------------------------------------- CRA.751/2004 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CC.1537/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------------------------- C.MOHANAN, AGED 50 YEARS, LATE N.CHOKKALINGAM PILLAI, RAILWAY GATE KEEPER, PATHIL VEEDU, VAZHAPPALLY.P.O., CHANGANACHERRY, BY ADV. SRI.P.K.JOSE RESPONDENT(S): RESPONDENTS/RESPONDENTS/COMPLAINANT ----------------------------------------------------------------------------------------------- 1. V.RAMACHANDRAN CHETTIYAR, S/O.VELAYUDHAN CHETTIYAR, KANJIRATHUMMOOTTIL VEEDU PERUNNA KIZHAKKU, CHANGANACHERRY, KOTTAYAM DIST. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. ADV. SRI.JOMY GEORGE FOR R.1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1667 of 2006() CRL. M. APPL. NO. 4628 OF 2006 IN CRL. R.P. NO. 1667 OF 2006 DISMISSED SD/- M.N.KRISHNAN, JUDGE 18.12.2008 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- Crl.R.P.No. 1667 OF 2006 --------------------------------- Dated this the 18th day of December, 2008 O R D E R This Criminal Revision Petition is preferred against the judgment of the Additional Sessions Judge (Adhoc)-I, Kottayam in Crl.Appeal No. 751/2004. The said appeal was preferred against the conviction and sentence passed by Judicial First Class Magistrate Court -II (Mobile), Kottayam in C.C. 1537/2000. The accused therein was convicted and sentenced to undergo Simple Imprisonment for three months and to pay a compensation of Rs. 15,000/- and in default to undergo Simple Imprisonment for one month. The appellate court modified the sentence by reducing imprisonment to one day i.e., till the rising of the court with a further direction to pay compensation under Section 357(3). It is against that decision the Criminal Revision Petition is preferred. 2. It is the case of the complainant that the revision petitioner had borrowed some amount for which he had issued two cheques for Rs. 15,000/- and Rs. 12,500/- which when presented for encashment returned with an endorsement of insufficiency of funds. After the statutory notice, no payment was made and action was Crl.R.P. No. 1667/2006 -2- initiated under Section 138 of the Negotiable Instruments Act. The contention of the accused appears to be that he had borrowed a sum of Rs. 30,000/- from a friend of PW1 and had issued two blank signed cheques. After analysing the evidence, the trial court as well as the appellate court found that the case of the complainant appears to be more probable, truthful and acceptable. Both courts recorded that nothing has found to discredit the evidence of PW1. Further the courts compaired the evidence of PW1 and DW1 to find out the intrinsic liability. So after consideration of all these materials, it is arrived at a decision regarding the execution of the cheque and that it was towards the discharge of the liability. There is no sufficient evidence to rebut the presumptions. Therefore found the revision petitioner guilty under Section 138 of the Negotiable Instruments Act. I do not find any ground to take a different view. Therefore the conviction under Section 138 of the Negotiable Instruments Act is sustained. 3. So far as the sentence is concerned, I feel the maximum leniency had be shown by the appellate court but it is desirable that the compensation is converted to fine with default sentence and some time be given to the revision petitioner to wipe off his liability. Crl.R.P. No. 1667/2006 -3- Therefore the Criminal Revision Petition is disposed of as follows: 1. The conviction under Section 138 is sustained. 2. The revision petitioner is sentenced to undergo Simple Imprisonment till the rising of the court and pay a fine of Rs. 15,000/- which on realisation shall be disbursed to the complainant and in default of payment of fine the revision petitioner shall undergo Simple Imprisonment for three weeks. 3. The revision petitioner shall present himself before the trial court to receive the sentence and pay the fine on 12.2.2009, failing which the trial court shall execute the sentence. 4. If any amount is deposited, that shall be treated as part of the fine and the balance need be deposited and the amount so deposited shall be disbursed to the complainant on appropriate application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm