IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3693 of 2009() ------------------------------ CRA.336/2008 of SESSIONS COURT, KASARAGOD CC.1027/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- P.RAMESHAN, AGED 39 YEARS, S/O.LATE KUNHIRAMAN.P., PUTHIYADAVAN HOUSE, RESIDING AT THIMIRI, THIMIRI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENTS: COMPLAINANTS: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. 2. K.NARAYANAN, S/O.KORAN, AGED 61 YEARS, RESIDING AT KUNNIPARA, KODAKKAD VILLAGE, HOSDURG TALUK, P.O.THIMIRI. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ----------------------------------- Crl.R.P.No.3693 of 2009 ---------------------------------- Dated this the 8th day of December, 2009 ORDER The Judicial Magistrate of the First Class-I, Hosdurg in C.C.No.1027 of 2007 on his file convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for six months and to pay Rs.1,10,000/-, the cheque amount as compensation to the second respondent who was the complainant. In Criminal Appeal No.336 of 2008 the Sessions Judge, Kazaragod, while confirming the conviction, the substantive sentence was reduced to simple imprisonment for ten days. The order to pay compensation was sustained. Now this revision. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the revision petitioner owed a sum of Rs.1,10,000/- to the second respondent and in discharge of the said liability, Exts.P1 and P2 cheques dated 10/5/2007 & 15/5/2007 for Rs.75,000/- and Rs.35,000/- respectively were issued and that when Exts.P1 Crl.R.P.No.3693 of 2009 2 and P2 were sent for collection, those were returned dishonoured for insufficiency of funds as evidenced by Exts.P3 and P4 memos dated 18/5/2007. Though demanding discharge of the liability, a lawyer notice dated 26/5/2007 copy of which was marked as Ext.P5 was acknowledged by the revision petitioner as evidenced by Ext.P6, the liability was not discharged. The revision petitioner took up a defence that he has no transaction with the second respondent and that while borrowing Rs.30,000/- from one Babu, two blank cheques were given and the second respondent is suspected to be the binami of the Babu. However, he did not adduce any evidence in support of that plea. It is pertinent to note that the revision petitioner had not responded to the lawyer notice demanding discharge of the liability. The silence of the revision petitioner after acknowledging the notice demanding discharge of the liability looms large. It appears that the defence now advanced during the trial is one found out as a result of an afterthought, that too, the revision petitioner could not substantiate. The evidence of PW.1 supported by the presumptions under Sections 118 and Crl.R.P.No.3693 of 2009 3 139 of the Negotiable Instruments Act that the cheques were drawn for valuable consideration and delivered in discharge of the liability remains uncontroverted. There is no evidence on record to conclude that PW.1 got Ext.P1 in any manner other than what was deposed by him. The revision petitioner could not establish even a probability of the defence theory. I find that the courts below had correctly appreciated the evidence and rightly arrived a conclusion of guilty. The conviction is based upon cogent evidence. 3. According to the learned counsel, the financial difficulties led the revision petitioner to face the prosecution. In the above circumstance, I find that he is entitled to a little leniency and that a sentence of imprisonment till rising of the court with order to pay compensation as ordered by the courts below would meet the ends of justice. In the result, this revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court with order to pay Rs.1,10,000/- as compensation to the second respondent. In Crl.R.P.No.3693 of 2009 4 default of payment of compensation the revision petitioner shall undergo simple imprisonment for five months. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.