IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.Rev.Pet.No. 168 of 2003() ----------------------------- CRA.137/1998 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.158/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER: ACCUSED ------------------------- K.KUMARAN, S/O. KELAPPAN, AGED 50 YEARS, MAYKUNNU, CHOKLI, THALASSERY. BY ADV. SRI.P.K.VIJAYAN RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.P.MAMMAD ABOOTTY S/O. ABOOTTY HAJI, KERALA HOUSE, POST KOTTAYAM MALABAR, THALASSERY BY ADV. SRI.V.N.RAMESAN NAMBISAN FOR R2 BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.541/2003 IN CRL.R.P.NO168/2003 DISMISSED 25.8.2008. SD/= V. GIRI, JUDGE. /TRUE COPY/ cl V. GIRI, J. --------------------------------- CRL.R.P.NO.168 OF 2003 ------------------------------------- Dated this the 25th day of August, 2008. O R D E R The accused in C.C.No.158/1996, who was convicted and sentenced for the offence under Section 138 of the N.I.Act, which was affirmed by the appellate court in Crl.A.No.137/1998 on the file of the Additional Sessions Judge (Adhoc-I), Thalassery, is the petitioner in this Criminal Revision Petition. 2. The complainant alleged that the accused had borrowed an amount of Rs.90,000/= and had issued Ext.P1 cheque in discharge of the said liability. When it was presented for encashment, the same was dishonoured for want of sufficient funds. Hence, the complaint was instituted. 3. The defence set up by the accused as is evidenced from the deposition of DWs 1 and 2, DW2 being the accused himself, was that the he had borrowed an amount of Rs.20,000/= alone from the complainant and that the said amount was repaid in instalments. The accused had subscribed the signature in the cheque but, it was a blank cheque. The amount was later inserted by the complainant without authority. The trial court appreciated the CRL.R.P.NO.168/03 . 2 evidence meticulously. It was found that the evidence of DW1 is not believable. Apparently it seemed to be a tutored version which was not put forward even by DW2. He deposed that the amount borrowed by the accused had been repaid. But he was not a witness to the repayment as such. He was not aware of the amount for which the complaint was lodged. The trial court which was in a position to assess the demeanour of the witnesses came to a categoric conclusion that DW1 seems to be a tutored witness. 4. The courts below correctly took note of the fact that, even according to the accused, he had borrowed some amount from the complainant. According to him, he borrowed an amount of Rs.20,000/=. No evidence what so ever was adduced by the accused to substantiate his plea of repayment. In these circumstances, it will have to be held that the accused was unsuccessful in rebutting the statutory presumption that the complainant was entitled to draw in terms of Section 139 of the N.I.Act. 5. I am of the view that the courts below have appreciated the evidence correctly and have rightly convicted the accused under Section 138 of the N.I.Act. CRL.R.P.NO.168/03 . 3 6. In so far as the sentence is concerned, it is significant to point out that the trial court had imposed a fine of Rs.30,000/= with no substantive sentence of imprisonment. I am of the view that instead of fine, the accused shall be called upon to pay compensation to the complainant. 7. Accordingly, the sentence imposed on the accused is modified to the following effect: The accused shall suffer imprisonment till the rising of the court. He shall also pay to the complainant an amount of Rs.30,000/= (Rupees Thirty Thousand only) as compensation under Section 357(3) of the Cr.P.C. The parties shall appear before the trial court on 17.11.2008 for the aforementioned purpose. The compensation shall be paid within three months from today. The Crl.R.P is disposed of as above. V. GIRI, JUDGE. cl CRL.R.P.NO.168/03 . 4 V. GIRI, J. CRL.R.P.NO.168 OF 2003 O R D E R 25th August, 2008. CRL.R.P.NO.168/03 . 5 V. GIRI, J. CRL.R.P.NO.168 OF 2003 O R D E R 25th August, 2008.