IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2349 of 2009 ------------------------------------ CRA.197/2008 of ADDL.SESSIONS COURT (ADHOC)-1, KOTTAYAM ST.2411/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM ................................................ REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ----------------------------------------------------------------------------------------------------- P.A.BHASKARAN, SREEKRISHNA NIVAS, MANYAPALLY P.O., MUTTOM, NATTAKOM, KOTTAYAM. BY ADV. SRI.VIJU ABRAHAM SRI.K.ANIL JOSEPH SRI.JOY C. PAUL SRI.DOMINIC JOHNSON RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. SANTHOSH J.KANDANKULATHY, KANDAKULATHY HOUSE, KARAPPUZHA P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR SRI.ABRAHAM GEORGE JACOB FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.R.P.NO.2349 OF 2009 ------------------------------ Dated this the 30th day of July, 2009 O R D E R This is a revision preferred against the confirmation of sentence in Crl.A.No.197/2008 of the Additional Sessions Judge (Adhoc)-I, Kotayam. That appeal had arisen out of the conviction and sentence passed in S.T.No.2411/2007. The trial court convicted the accused to undergo S.I for three months and to pay a fine of Rs.10,000/= and in default to undergo S.I for another three months. It is the case of the complainant that the accused had borrowed a sum of Rs.4,79,500/= and towards the discharge of the liability had issued a cheque on 1.3.2005 which when presented for encashment returned with the endorsement account closed. Thereafter on compliance of the statutory requirement, prosecution has been launched. 2. PW1 was examined and it is deposed by him that the accused had borrowed Rs. Two lakhs on 29.7.2000 promising to pay the sum with interest on 29.7.2000 and thus 2 CRL.R.P.NO.2349/09 Ext.P1 agreement came into being. Thereafter, the amount was ascertained and on 29.7.2002 the accused executed a promissory note Ext.P2. Thereafter on 9.3.2005 towards the discharge of the liability, as the amount due on that date a cheque for Rs.4,79,500/= was issued. The courts below concurrently held that Exts.P1 to P3 revealed that there was a debtor creditor relationship between the accused and the complainant and that the accused had issued a cheque towards the discharge of the liability and since all the statutory mandates had been complied with, found the accused guilty and convicted thereunder. 3. In appeal also, the learned Sessions Judge confirmed the said judgment. So, I do not find any merit in the revision to interfere especially in the backdrop that a revisional court has no power to re-appreciate the evidence and arrive at a conclusion unless the appreciation of the evidence is totally perverse. Here the documentary evidence and the evidence of PW1 fully support the case of the complainant and therefore, the finding of guilt has only to be 3 CRL.R.P.NO.2349/09 confirmed. 4. Now turning to the question of sentence. The trial court had convicted the accused to undergo imprisonment for 3 months and to pay a fine of Rs.10,000/=. I am informed that the complainant has also obtained a civil decree but the learned counsel would say that even the subject matter of the mortgage has been transferred. 5. So, taking into consideration the entire materials, I feel, the sentence of imprisonment can be reduced and the sentence of fine can be enhanced in the form of compensation and thus make it advantageous to both the parties. If such an amount is paid, that amount has to be given credit to and only the balance amount can be realised in execution of the civil decree. Therefore, the criminal revision petition is disposed of as follows: 1. The finding of guilt under Section 138 of the N.I. Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo imprisonment till the rising of the court and to pay 4 CRL.R.P.NO.2349/09 a compensation of Rs.Two lakhs to the complainant as envisaged under Section 357(3) of the Cr.P.C. If the amount is realised, the complainant has to deduct that amount from the decree amount which is due and only the balance can be recovered. The revision petitioner namely the accused shall appear before the court below on 1.12.2009 for receiving the sentence and for payment of the compensation. M.N. KRISHNAN, JUDGE cl 5 CRL.R.P.NO.2349/09