IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 2274 of 2004(D) -------------------------------------------- CRA.NO.15/2004 OF SESSIONS COURT, THODUPUZHA, CC.NO.268/2001 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ M.N.SUDHODHANAN (INCORRECTLY SHOWN AS M.N.SUDHODHARAN IN THE LOWER COURT RECORDS), S/O.M.S.NARAYANAN, AGED 40, RESIDING AT BLOCK NO.99, THOOKKUPALAM BHAGAM, KALLAR PATTAM COLONY, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.P.CHANDY JOSEPH. RESPONDENT(S)/ COMPLAINANTS: --------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEW JOSEPH, S/O.JOSEPH VARIAMPARAMBIL, COMPANIPADI BHAGOM, PULIYANMALA KARA, KATTAPPANA VILLAGE. R1 BY PUBLIC PROSECUTOR SRI.K.C. SANTHOSH KUMAR, R2 BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL). THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.2274 OF 2004 ------------------------------------------- Dated this the 29th day of January, 2009 O R D E R 1. Recalled the order dated 17.10.2008. 2. The revision petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act. He is ordered to suffer simple imprisonment for three months and to pay compensation of Rs.90,000/- and in default to undergo simple imprisonment for a further term of two months. The concurrent decisions of the court below were following the complaint that the accused, in discharge of debt due to the complainant, issued Ext.P1 cheque dated 17-9-2000 for Rs.90,000/- and that the same was dishonoured on presentation, for the reason of insufficiency of funds and that on knowing the dishonour, the accused requested the complainant for time and accordingly the cheque was again presented for collection but again dishonoured on the ground of insufficiency of funds, following which, based on Exts.P4 CRRP.2274/04 Page numbers and P5, Ext.P6 notice was issued intimating the dishonour and that the accused did not make the payment, though notice was served on him, as evidenced by Ext.P8 postal acknowledgment. On the basis of the materials on record, which included Ext.P7 extract of accounts, it is established beyond doubt that there was deficiency of funds in the bank account of the accused and the cheque could not have been honoured. The complainant gave evidence as PW.1 and the courts below have concurrently found that nothing has been brought out to discredit his testimony. Having heard such materials, I do not find any ground to disbelieve him. The accused attempted to set up a case that Ext.P1 was a blank cheque given to one Francis, the brother of the complainant, as security for an amount borrowed from Francis; and that has been misused, leading to the institution of this complaint. Accused took the stand that the transaction between him and Francis related to the deposit of the registration certificate of the jeep of the accused. The lower appellate court, rightly, took the view that such version could not be accepted even when the accused had not even CRRP.2274/04 Page numbers taken any steps to make a complaint in that regard to the police. Though the accused tried to make out a case on the basis of non-recording of the entire address in the postal registration receipt, the courts below have adverted to that ground and the lower appellate court, in paragraph 10 of the impugned judgment, categorically found that the said plea was not acceptable when notice is shown to have been issued in the correct address and acknowledged as per Ext.P8 acknowledgment. 3. For the aforesaid reasons, I do not find any ground to interfere with the conviction. All that remains to be considered is the request of the petitioner to modify the sentence imposed by the courts below. Having regard to the totality of the facts and circumstances, in modification of the sentence imposed by the courts below, it is ordered that: (i) The revision is allowed in part. CRRP.2274/04 Page numbers (ii) The finding of guilt and the conviction are confirmed. (iii) The sentence imposed by the courts below on the revision petitioner is vacated. In supersession thereof, the revision petitioner/accused is sentenced: (a) to undergo imprisonment till rising of the court, for a day; and (b) to pay fine of Rs.95,000/-, in default of which, he shall undergo simple imprisonment for a period of one month. Any amount already deposited in terms of the interim orders will be given due credit to against the fine. (c) The fine, if paid or realized, shall be treated as compensation payable to the complainant and shall be released accordingly. CRRP.2274/04 Page numbers The learned Magistrate shall take necessary steps for execution of the modified sentence hereby imposed. The revision petitioner shall appear and his sureties shall produce him before the court below on 20.2.2009 to suffer the sentence. Needless to say, the learned Magistrate shall take necessary action against the revision petitioner and his sureties under Section 446 Crl.P.C., if he does not appear as directed above. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.