IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 Crl.Rev.Pet.No. 388 of 2010() ----------------------------- CRA.202/2009 of ADDL.SESSIONS COURT, KOTTAYAM ST.608/2006 of JUDL.MAGISTRATE OF FIRST CLASS - III, KANJIRAPPALLY .................... REVISION PETITIONER/ APPELLANT/ACCUSED: --------------------------------------- SUNIL.K.EASO, S/O.THANKAPPAN, ANJILITHOPIL HOUSE, PANAYAMPALA KARA, KARUKACHAL VILLAGE, CHANGANACHERRY. BY ADV. SRI.A.K.HARIDAS RESPONDENTS/RESPONDENTS /COMPLAINANT & STATE: ----------------------------------- 1. K.M.JOHNY, S/O.MATHAI, RESIDING AT KANDATHOTTU HOUSE, MANIMALA KARA, MANAIMALA VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHANAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J. --------------------------------------- Crl. R.P. No. 388 of 2010 --------------------------------------- Dated this the 1st day of February, 2010 O R D E R This Criminal Revision Petition is directed against the judgment dated 27-04-2009 of the Judicial First Class Magistrate Court III, Kanjirappilly in S . T . Case . No. 608 / 2006 and the judgment dated 07-09-2009 of the Lower Appellete Court in Criminal Appeal No. 202/2009. By the above judgment, the court below convicted the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and accordingly he is sentenced. 2. The first respondent is the complainant. According to him, on 20-06-2006 the revision petitioner had obtained a loan of Rs. 1,00,000/- from him and towards the discharge of the said liability, the accused issued a cheque dated 18 -07 - 2006 for a sum of Crl. RP 388/2010 2 Rs. 1,00,000/-. When the cheque was presented for encashment, it was dishonored for want of sufficient fund. Consequently the complainant had caused to sent a lawyer notice to the revision petitioner / accused intimating him about the dishonor of cheque and further demanding him to pay the amount covered by the cheque. As there was no payment, he approached the court below by filing a formal complaint upon which cognizance was taken and instituted in S.T. Case No. 608/2006 in the Judicial First Class Court III Kanjirappilly. During the trial, the complainant was examined as PW 1 and Exhibit P1 to P6 were marked. No evidence, either documentary or oral, was adduced from the side of the defence. On the basis of the evidence and materials adduced before the trial court, it is found that the revision petitioner is guilty of the offence under Crl. RP 388/2010 3 Section 138 of the Negotiable Instruments Act and accordingly the accused/revision petitioner is sentenced to undergo simple imprisonment for 6 months and further ordered to pay a sum of Rs. 1,00,000/- as compensation under Section 357 (3) of Cr.P.C and in default of payment of the compensation, it was ordered to undergo simple imprisonment for 2 months. 3. Aggrieved by the order of conviction and sentence the accused / revision petitioner preferred Crl.R.P 202/2009 which was disposed of by the Court below by its judgment dated 07-09-2009. While disposing of the appeal, Lower Appellate Court confirmed the conviction, but the sentence was modified and reduced to one month simple imprisonment. The direction to pay the compensation is maintained. It is the above conviction and sentence are challenged in this revision petition. Crl. RP 388/2010 4 4. I have heard the learned counsel appearing for the revision petitioner, who submitted that the revision petitioner, was the owner of a bus in which the complainant had worked as a driver and his son was also given a job in the bus service during the year 2002 and that job was given on deposit of a sum of Rs. 15,000/- as security and at that time, a blank cheque was given to the son by way of security for repayment and it was the said cheque misused by the complainant for filing the complaint. 5. From the judgment of the court below it can be seen that when PW1 was examined before the court below he had categorically deposed about the transaction. Admittedly, there is no dispute regarding the signature contained in the cheque in question. According to the revision petitioner, the cheque was given only as a Crl. RP 388/2010 5 security for the repayment of the amount. The court below found that the above case of the defence has not been substantiated and no evidence adduced, during trial to probabilise the above version of the defence. The court below has also found that though a statutory notice was issued to the accused and the same was received by him, no proper reply was issued. Thus it can be seen that the defence story was put forward by the defence for the first time only at the time of trial. If it was correct, the same could have been stated at appropriate time only by way of reply to the statutory notice. Thus on the basis of the above facts and situation and based upon the evidence and materials on records, the trial court found that the revision petitioner is guilty of the offence charged against him. Therefore I find no reason to interfere with the order of conviction passed by the courts below. Crl. RP 388/2010 6 6. Learned counsel for the revision petitioner submitted that some leniency may be shown in favour of the revision petitioner in the matter of sentence as he has no sufficient income. Based on the facts and circumstances involved in the matter, I am of the view that some modification can be effected with respect to the sentence and breathing time can be granted to make the payment as ordered by the court below. 7. In the result this revision petition is disposed of confirming the conviction but reducing the sentence of imprisonment from one month to one day, ie. till the rising of the court and is further directed to make the payment of compensation amount awarded by the court below within one month on the date on which he appears for receiving the sentence. The revision petitioner is directed to appear before the trial court on 15-03-2010 to Crl. RP 388/2010 7 receive the sentence and to make the payment of the compensation amount fixed by the court below. If the petitioner fails to comply with the above direction, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence and to realise the compensation amount as ordered. Revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE rkc