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. 24 of 2001() ---------------------------- CRA.81/1998 of II ADDL. SESSIONS COURT, PALAKKAD ST.5836/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER/APELLANT/ACCUSED: ------------------ SIVADASAN, SONOF KITTA, PULIKKAL VEEDU, KOZHIKKODU, KANNIMARI, CHITTOOR. BY ADV. SRI.H.BADARUDDIN RESPONDENTS/FIRST RESPONDENT/COMPLAINANT & STATE: ------------- 1. GOVINDASWAMY, S/O.RUNGUSWAMI, K.K.KALATHIL, NANDIYODU, PERUMALLY, CHITOOR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.RENJITH THAMPAN 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.98 OF 2001 IN CRL.R.P.NO.24 OF 2001 //DISMISSED// 13.08.2008. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.24 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 he issued a cheque for Rs.10,000/- on 3.11.1997 drawn on the South Indian Bank, Vandithavalam branch on an account maintained by him in discharge of a debt due to the complainant and on presentation, that cheque was returned dishonoured due to insufficiency of fund and that on notice of intimation of such dishonour, the accused did not pay the amount covered by the cheque. 2. Before the court of first instance, PWs.1 and 2 gave evidence. PW1 is the complainant and PW2 is the Clerk attached to the South Indian Bank, Vandithavalam branch. Exts.P1 to P6 were marked. Ext.P1 cheque, Ext.P2 cheque return memo, Ext.P4 copy of notice and postal receipt, Ext.P5 authorisation letter and Ext.P6 copy of ledger extract were Crl.RP.24/01 Page numbers proved. The complainant deposed in terms of the allegation in the complaint regarding the borrowing of the amount and the issuance of Ext.P1 cheque, on 3.11.1997. He also spoke of all the other attendant details, which provides the initiation of the cause of action for the complaint. Except a vague suggestion that the accused has issued only a blank cheque, nothing was brought out in cross examination of PW1. Evidence of PW1 was found to be trustworthy by the courts below. The details regarding the cheque and its dishonour was corroborated by the evidence of PW2 also. With Exts.P3 and P4, the complainant established that notice was issued to the accused and it was returned unclaimed. The courts below did not call for any material to conclude against the complainant. 3. For the aforesaid reasons, I do not find any ground to interfere with the conviction. However, 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. Crl.RP.24/01 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.11,000/-, 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. Crl.RP.24/01 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 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.