IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.REV.PET.NO. 2421 OF 2008() ------------------------------------------- CRA.359/2006 OF VI ADDL.SESSIONS COURT, ERNAKULAM CC.1996/2002 OF ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------ SUSHEELA JAYASIMHAN, W/O JAYASIMHAN, 11/233, SHOPPIN PADI JUNCTION, NEAR DHYANAKENDRAM, CHITTOOR (SOUTH). BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT(S) - RESPONDENT - COMPLAINANT & STATE: ------------------------------------------------------------------------- 1. V.S.BABU, S/O SATHYAPALAN, AGED 41 YEARS, ASWATHI, HOUSE NO. 67, INDIRA NAGAR,JADGES AVENUE, KALOOR, KOCHI -17. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2421 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of July, 2009 O R D E R -------------- Notice to respondent No.1 is returned unserved. In view of the order I propose to pass in this revision which is not prejudicial to him further notice to respondent No.1 is not ordered. Heard counsel for petitioner and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Ernakulam in Crl. Appeal No.359 of 2006 confirming conviction but modifying sentence. Petitioner faced trial in C.C. No.1996 of 2002 along with a batch of other cases for offence punishable under Section 138 of the Negotiable Instruments Act. Those cases were tried together and disposed of jointly. Petitioner was convicted in the case on hand while in other cases he was acquitted. According to respondent No.1, petitioner borrowed Rs.55,000/- from him and issued Exts.P8 and P9, cheques dated 14.6.2002 for Rs.15,000/- and 15.6.2002 for Rs.40,000/- for repayment of the said amount. It is not disputed before me by the petitioner also that those cheques were dishonoured for insufficiency of funds and in spite of service of notice on the petitioner liability was not discharged. Respondent No.1 gave evidence as P.W.1 and stated to CRL. R.P. No.2421 of 2008 -: 2 :- his case. Respondent No.1 gave evidence regarding the transaction leading to the execution of the cheques. Courts below accepted that evidence and found in favour of due execution of the cheques. In the light of the evidence discussed in the judgments under challenge and submission of learned counsel I find no reason to interfere with the concurrent finding regarding due execution of the cheques. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for one year and directed payment of fine of Rs.1,10,000/- with a default sentence of imprisonment for six months. Appellate court modified the substantive sentence as simple imprisonment for one month and fine of Rs.55,000/- and default sentence of imprisonment for one month. Learned counsel contended that the sentence imposed is excessive. Learned counsel requested two months’ time to deposit the fine in the trial court. Counsel submits that petitioner is placed in poor financial situation and is unable to raise the amount immediately. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court and fine as awarded by the learned Sessions Judge is sufficient in the ends of justice. In case of failure petitioner shall undergo simple imprisonment for two months as CRL. R.P. No.2421 of 2008 -: 3 :- directed by the learned sessions Judge. Fine if realised shall be paid to respondent No.1 as compensation. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded to petitioner is modified as simple imprisonment till rising of the court. (ii) While retaining the fine awarded by the appellate court petitioner is granted two months from this day to deposit fine in the trail court. In case of failure petitioner shall undergo simple imprisonment for two months. Petitioner shall appear in the trial court on 24.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv