IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 Crl.Rev.Pet.No. 652 of 2001() ----------------------------- CRA.177/1999 of SESSIONS COURT, ALAPPUZHA ST.190/1996 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------ BABY, S/O.THANKAPPAN, THAZHCHAYIL HOUSE, WARD NO.9, ARYAD PANCHAYAT, ALAPPUZHA. BY ADV. SRI.V.N.SWAMINATHAN SRI.S.DILEEP RESPONDENTS/COMPLAINANT & ANOTHER: ------------- 1. K.V.VASUDEVAN, VRINDAVANAM, C/O.KILIYAMPARAMBIL, THONDANKULANGARA, ALAPPUZHA. 2. KERALA STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA R2 BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.3110 OF 2001 IN CRL.R.P.NO.652 OF 2001 //DISMISSED// 13.08.2008. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.652 OF 2001 ------------------------------------------- Dated this the 13th day of August, 2008 O R D E R The revision petitioner stands convicted and sentenced for offences punishable under Section 138 of the Negotiable Instruments Act on the allegation that the cheque issued by him for an amount of Rs.34,125/-, dated 4.3.1996, was dishonoured on presentation, and the accused failed to pay such amount on notice of intimation of such dishonour. The court of first instance appreciated the evidence of PWs.1 to 3 and considered Exts.P1 to P8. No evidence was adduced by the accused and he merely retreated his alleged innocence in his statement under Section 313 Cr.PC. The courts below believed the version of PW1, the complainant and the version of PW3, the Postman regarding the delivery of the notice. The Bank Manager was examined as PW2. Notice was held to have been duly served and the courts below appropriately cast the burden of proof of non receipt of notice on the accused, following the decision of this Court in Kannan v. Kothanden [1005 (2) KLT SN 5] and in Madhu v. Omega pipes Limited [1994 (1) KLT 481]. Crl.RP.652/01 Page numbers 2. Having regard to the totality of the facts and circumstances and the materials on record, I am of the view that the legal evidence amply sustain the conviction and I find no ground to interfere. However, in the case of sentence, it appears that the matter calls for leniency. It is hence ordered that: (i) The revision is allowed in part. (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.40,000/-, in default of which, he shall undergo simple imprisonment for a period of one month. Any amount already deposited in Crl.RP.652/01 Page numbers 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. 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 16-9-2008 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.16/8.