IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 10 of 2006() ---------------------------- CRA.551/2003 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.26/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- K.U.MATHEW, S/O.UTHUPPU, KODIYANTHARA HOUSE, KUMARAKOM, KOTTAYAM DIST. BY ADVS. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN SRI.C.MURALIKRISHNAN (PAYYANUR) RESPONDENT(S): RESPONDENT(S)/COMPLAINANT ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.UNITED BANKERS, K.K.ROAD, KOTTAYAM, REP. BY ITS PARTNER, JOSEPH JOHN, S/O.JOHN, THEKKETHALACKAL HOUSE, PUTHENANANGADI, KOTTAYAM. ADV. SRI.ABRAHAM GEORGE JACOB FOR R2 SRI. MURALIKRISHNAN (PAYYANNUR) FOR R2 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. R.P.NO. 10/2006 ORDER ON CRL. M.A.NO. 31/2006 IN CRL. R.P.NO.10/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 7.11.2008 /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J ----------------------- CRL. R.P.No. 10 OF 2006 --------------------------------- Dated this the 7th day of November, 2008 ORDER This Revision is preferred against the judgment in Criminal Appeal No. 551/2003 of the Additional Sessions Judge (Special), Kottayam. The said appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate-II (Mobile), Kottayam in C.C. No. 26/2003. It was a prosecution under Section 138 of the Negotiable Instruments Act and the Trial Court convicted the accused under Section 138 and sentenced him to undergo Simple Imprisonment for three months and to pay Rs. 50,000/- as compensation. The said matter was taken in appeal and it resulted in dismissal and it is against that decision the present revision is preferred. 2. Heard the learned counsels for both sides. It is a case of the complainant that the Revision Petitioner had borrowed a sum of Rs. 50,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment was returned with an endorsement of insufficiency of funds. The statutory notice was sent and in spite of the same the Revision Petitioner did not pay the CRL. R.P..No. 10 OF 2006 -2- amount. Hence initiation of prosecution under Section 138 of the Negotiable Instruments Act. On the other hand the contention of the Revision Petitioner appears to be that he went to the firm of the complainant to obtain a loan and as a part of the transaction issued blank cheques as security which has been utilised by the complainant to initiate a case against him. 3. In the Trial Court PW1 and DW1 were examined and P1 to P9 were marked. PW1 is one of the partners of the complainant bank deposed before the Court in tune with the averments contained in the complaint and both courts below found that in spite of searching examination his evidence has not been shattered. On the contrary court found that the evidence of DW1 is interested and that he is an employee of the brother of the Revision Petitioner. I am conscious that it is not a ground to discard the evidence of a person in a case. There are catene of decisions wherein it has been held that in a prosecution under Section 138 of Negotiable Instrument Act when the accused who is not under an obligation to adduce evidence the courts are entitled to consider that evidence also to arrive at a decision. Both the courts factually on the materials found in favour of the complainant and those findings are CRL. R.P..No. 10 OF 2006 -3- not tainted with any illegality, irregularity, impropriety or mis- appreciation of evidence which calls for interference at the stage of revisional jurisdiction. Therefore I confirm the finding of guilt under Section 138 of Negotiable Instruments Act. 3. Next is the question of sentence. The Trial Court has convicted the accused and sentenced him to undergo Simple Imprisonment for three months and to pay a compensation of Rs. 50,000/- under Section 357(3) of Criminal Procedure Code. I feel leniency can be shown and I modify the sentence by directing the Revision Petitioner to undergo Simple Imprisonment till the rising of the court and pay a fine of Rs. 50,000/- which on realisation or payment be disbursed to the complainant and in default the Revision Petitioner shall undergo Simple Imprisonment for two months. In the result the Crl. Rivision Petition is disposed of as follows: 1. Finding of guilty under Section 138 is confirmed. 2. The sentence is modified and the Revision Petitioner is sentenced to undergo Simple Imprisonment for one day that is till the rising of the Court and pay a fine of Rs. 50,000/- which on realisation shall be disbursed to the complainant and in default of CRL. R.P..No. 10 OF 2006 -4- payment of fine Revision Petitioner shall undergo Simple Imprisonment for two months. The Revision Petitioner shall present himself before the Trial Court to receive the sentence and pay the fine on 5.02.2009 failing which the trial court shall execute the sentence. Crl. Revision Petition is disposed of accordingly. M.N. KRISHNAN, JUDGE vkm