IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 1454 of 2001() ------------------------------ {CR.A.NO.206/2001 OF THE SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM IN CC.NO.1076/1997 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA} .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------------------------------------------- 1. MATHEW JOHN, S/O.JOHN, KALCHIRA VEEDU, VAZHAKULAM KARA, MANJALLOOR VILLAGE, MUVATTUPUZHA. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------------------------------------- 1. MAKKAR, SON OF PAREED, PARAMBIL VEEDU, PAYIPRA KARA, MULAVOOR VILLAGE, MUVATTUPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 ADV. SRI.P.V.SANTHOSH JOSE R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT on the SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.1454 of 2001 ------------------------- Dated this the 10th day of February, 2009. O R D E R The accused in C.C.No.1076/97 on the file of the Judicial Magistrate of the First Class-I, Muvattupuzha, who was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, is the petitioner in this Criminal Revision Petition. 2. The case of the complainant is that the accused issued a cheque for an amount of Rs.28,700/- in discharge of a debt. Though a notice was issued, it was not responded to. Hence the accused committed an offence under Section 138 of the Act. 3. The complainant was examined as PW.1 and marked Ext.P1 cheque, which contained the endorsement 'funds insufficient'. The same was again proved by Exts.P2 and P3 memos issued from the bank. Ext.P4 lawyer's notice is dated 11.7.1997. The evidence adduced on behalf of the complainant was sufficient to bring home the guilt of the accused under Section 138 of CRL.R.P.No.1454 of 2001 :: 2 :: the Act. Though the cheque was for an amount of Rs.28,700/-, the trial court had sentenced the accused to undergo simple imprisonment for one month and to pay a fine of Rs.5,000/-, with a direction that if the fine amount is realised, a sum of Rs.3,000/- out of the same shall be paid to PW.1 under Section 357(1)(b) of the Cr.P.C. The conviction and sentence were confirmed by the lower appellate court. 4. I have referred to the contention that the accused committed an offence under Section 138, though in the course of obtaining 313 statement, the accused set up a case that the entire amount due to the complainant was actually paid. But the cheque, which had been handed over to the complainant, along with a promissory note earlier as a security, was not returned. No attempt was made by the accused for getting the cheque back. Significantly, not even a reply notice was sent, though a notice was served on the accused. 5. In the circumstances, I do not find any ground to interfere with the conviction and sentence for the offence under Section 138 of the Act. CRL.R.P.No.1454 of 2001 :: 3 :: I also do not think that the sentence imposed by the court below was, in any manner, harsh. In such circumstances, I do not find my way to interfere with the conviction and sentence of the accused. Criminal Revision Petition is accordingly dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge