IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 3369 of 2009() ------------------------------ CRA.166/2008 of 3rd ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA ST.14/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- SAJIL, BLOCK NO.1241, PAMPADUMPARA, BALAGRAM, IDUKKI DIST. BY ADV. SRI.V.K.SUNIL RESPONDENTS: RESPONDENTS/COMPLAINANT & SATE --------------------------------------------- 1. M/S. MUTHOOT LEASING & FINANCE LTD., THODUPUZHA BRANCH, REPRESENTED BY ITS BRANCH MANAGER AND POWER OF ATTORNEY SRI.SHIBU JOSEPH, VETTANAL HOUSE, KARIMPARA P.O. ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3369 of 2009 ---------------------------------------- Dated this the 30th day of October, 2009 ORDER The revision petitioner is the accused in S.T.No.14 of 2008 on the file of the Judicial Magistrate of the First Class-II, Thodupuzha. The first respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after due trial, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for one month. He was further directed to pay Rs.45,000/- as compensation, to the first respondent under Section 357(3) of the Code of Criminal Procedure. In appeal, the 3rd Additional Sessions Judge, Thodupuzha, confirmed the conviction. But the substantive sentence was reduced to imprisonment till rising of the court and compensation of Rs.39,000/- with a default sentence of simple imprisonment for one month. Assailing the legality, correctness and propriety of the conviction and sentence, as modified in appeal, this revision petition was filed. Crl.R.P.No.3369 of 2009 2 2. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the first respondent, who was examined as P.W.1, supported by Exts.P1 to P9, had succeeded to establish that the revision petitioner owed a sum of Rs.37,874/- to the first respondent and in discharge of the said liability, Ext.P1 cheque dated 2.5.2007 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Exts.P2&P3 memos. Though a lawyer notice, copy of which was marked as Ext.P4 dated 23/5/2007, was caused demanding discharge of the liability and it was acknowledged by the petitioner as evidenced by Ext.P6, the liability was not discharged. Neither any reply. Though the revision petitioner had advanced a plea that when a loan was availed, a blank cheque was given as security and that the liability was discharged, no supporting evidence was let in. It is pertinent to note that the revision petitioner remained silent after acknowledging the lawyer notice demanding discharge. That silence looms large. If the defence now advanced is true, he Crl.R.P.No.3369 of 2009 3 would have retorted to the notice. It appears that the plea now advanced is the result of an afterthought. Lower court had rightly rejected the defence. The result is that there is no contra evidence. The evidence of PW.1 is supported by the legal presumption under Section 118 and 139 of Negotiable Instruments Act. I find that the courts below rightly arrived the conclusion of guilt. Conviction is unassailable. 3. According to the learned counsel, the revision petitioner is employed abroad and he had gone abroad only recently and in the event he is sentenced to imprisonment as now ordered, he would be put to irreparable loss and hardship. I find some merit in the submission. In the above circumstance, I find that the revision petitioner is entitled a little more leniency in sentence and that a sentence of fine of Rs.40,000/- (Rupees forty thousand only) would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, sentence is reduced to a fine of Rs.40,000/-. In default of payment of fine the revision petitioner shall undergo simple imprisonment for three months. Out of the Crl.R.P.No.3369 of 2009 4 fine amount, if realised, Rs.38,000/-(Rupees Thirty eight thousand only) shall be paid to the first respondent as compensation under Section 357(1) of the Code of Criminal Procedure. P.S.GOPINATHAN, JUDGE skj.