IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4590 of 2006() ----------------------------------------- CRA.397/2004 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), PATHANAMTHITTA CC.396/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER/APPELLANT/ACCUSED. -------------------------------------------------------------- VARGHESE JACOB, S/O.THOMMY VARGHESE, MUNDAPLACKAL, MANNIL, KUNNAMTHANAM P.O., THIRUVALLA. BY ADV. SRI.R.SANTHOSH BABU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE. ----------------------------------------------------------------------------------- 1. CHACKO, ASARIPARAMBIL VEEDU, CHENGAROOR P.O., MALLAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR R1 BY ADV. SRI.S.SUBHASH CHAND R1 BY ADV. SRI.V.V.SHAJI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 4590 of 2006 ORDER ON CRL.MA. NO.13133/2006 IN CRL.RP. NO.4590/2006 DISMISSED 09/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 4590 OF 2006 --------------------------------- Dated this the 9th day of December, 2008 ORDER This revision is preferred against the conviction and sentence passed by the Additional District & Sessions Judge (Ad-Hoc)Court -I, Pathanamthitta in Crl.A. 397/04. It was filed against the conviction and sentence passed by the Judicial First Class Magistrate, Thiruvalla in C.C. 396/01. The trial court convicted the accused under Section 138 of the Negotiable Instruments Act and directed him to undergo Simple Imprisonment for a period of one month and pay a compensation of Rs. 45,000/-, in default to undergo Simple Imprisonment for 15 days. In appeal the said conviction and sentence was confirmed and the appeal was dismissed. It is against that decision the revision petitioner has come up in revision. 2. Heard the learned counsel for the revision petitioner as well as the complainant. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs. 40,000/- and towards the discharge of the liability had issued Ext. P1 cheque which when presented for encashment returned for insufficiency of funds. The notice was issued and though the revision petitioner was intimated Crl.R.P.No. 4590/2006 -2- about the registered notice, he did not claim it and therefore it was returned unclaimed. Ext. P1 to P6 are the documents to prove the issuance of a cheque, dishonour of the cheque as well as the notice. The defence appears to be that PW1 is a total stranger and the accused has nothing to do with the transaction. The signature in Ext. P1 cheque has not been disputed. Both the courts below on elaborate consideration of the materials found that the revision petitioner has executed Ext. P1 cheque and had issued the same towards the discharge of liability. It also found that on account of the lack of funds it was dishonoured. So far as the issuance of notice is concerned, it is seen that intimation was given by the post man but it was returned as unclaimed and therefore trial court found it was proper service of notice. When a letter is addressed in a proper address and after due intimation it was not accepted, it has to be held that there is a substantial compliance of the mandatory provisions of the N.I Act regarding the issuance of notice. Therefore I do not find any perversity, illegality or irregularity committed by the courts below in convicting the accused under Section 138 of the Negotiable Instruments Act. 3. So far as the sentence is concerned, the learned counsel Crl.R.P.No. 4590/2006 -3- plead for leniency and I feel leniency can be shown with the hope that the revision petitioner will discharge the liability. Therefore I am inclined to modify the sentence by reducing the sentence of imprisonment till the rising of the court and convert the compensation into that of fine which on realization shall be disbursed to the complainant. Therefore the Criminal Revision Petition is disposed of as follows: 1. The conviction under section 138 of Negotiable Instruments Act is sustained. 2. The sentence is modified and the revision petitioner is directed to undergo Simple Imprisonment till the rising of the court and to pay a fine of Rs. 45,000/- which on realization shall be disbursed to the complainant and in default, revision petitioner shall undergo Simple Imprisonment for two months. 3. The revision petitioner shall present himself before the trial court to receive the sentence and to pay the fine on 6.4.2009, failing which the trial court shall execute the sentence. Crl.R.P.No. 4590/2006 -4- 4. If any amount is paid or deposited as compensation it shall be treated as a part of fine and balance need be deposited and the amounts so deposited shall be disbursed to the complainant on proper application. The Criminal Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm