IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.Rev.Pet.No. 3633 of 2009() ------------------------------ CRA.345/2009 of ADDL.SESSIONS COURT(ADHOC-II), ERNAKULAM CC.214/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- KURIAKOSE @ THANKACHAN, S/O.MATHAI, AGED 34 YEARS, KANDOTHARAYIL HOUSE, KOOMBANPARA P.O. ADIMALY. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS: RESPONDENTS/COMPLAINANTS: ---------------------------------------- 1. K.J.GIJO, S/O.JOY, AGED 38 YEARS, KUNNATHUMATTATHIL HOUSE, PANDRIMALA, MUVATTUPUZHA P.O., MOOVATTUPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3633 of 2009 ---------------------------------------- Dated this the 20th day of November, 2009 ORDER The Judicial Magistrate of the First Class-II, Muvattupuzha in C.C.No.214 of 2008 on his file, a complaint filed by the first respondent, convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment till rising of the court and a fine of Rs.2,05,000/-, which on realisation was ordered to be paid to the first respondent as compensation. In Criminal Appeal No.345 of 2009, by judgment dated 19/8/2009 the amount of compensation was reduced to Rupees two lakhs. In all other respects the sentence of the trial court was sustained. 2. Aggrieved by the above conviction and sentence as modified in appeal, this revision petition was filed. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent by his evidence as PW.1 supported by Exts.P1 to P6 had succeeded to establish that the revision petitioner owed a sum of Rupees two lakhs to the first respondent and in discharge of that Crl.R.P.No.3633 of 2009 2 liability, Ext.P1 cheque dated 16/4/2004 for the said amount drawn on State Bank of Travancore, Adimali Branch was issued and that when Ext.P1 cheque was sent for collection it was returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memos issued from the State Bank of Travancore, Admimaly Branch and South Indian Bank Ltd, Muvattupuzha branch respectively. Demanding discharge of the liability, a lawyer notice dated 24/5/2004, copy of which was marked as Ext.P4 was caused. Despite the acknowledgment of the notice as evidenced by Ext.P6 dated 27/5/2004, the liability was not discharged. 3. According to the learned counsel for the revision petitioner, there is delay in sending notice. Ext.P3 memo is dated 22/4/2004 and that the lawyer notice was caused only on 24/5/2004 and therefore there is delay in making the demand and hence the prosecution is vitiated. It is pertinent to note that PW.1 had deposed that he got Exts.P2 and P3 only on 29/4/2004. That evidence of PW.1 is not challenged in cross-examination. In the above circumstance, it had to be concluded that the date of receipt of information from the bank regarding the return of the Crl.R.P.No.3633 of 2009 3 cheuqe as unpaid is 29/4/2004 and Ext.P4 notice issued on 24/5/2004 is within 30 days as provided in proviso(b) to Section 138. The courts below were correct in arriving a finding that the notice was issued in time. I find no error, illegality or impropriety in the said finding. 4. Though the revision petitioner have got a case that he is a conductor in a bus and that a cheque was issued to the owner of the bus and misusing that cheque prosecution was launched, no evidence was adduced in support of such contention. In the above circumstance, the evidence of PW.1 supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act remains uncontroverted. The revision petitioner had not succeeded to rebut the legal presumptions. There is compliance of required statutory procedures. I find that the courts below had correctly analysed the evidence and rightly arrived a conclusion of guilt. The conviction is based on cogent evidence. No interference with the conviction. 5. The courts below were very lenient in confining the sentence to one till rising of the court and the appellate court to Crl.R.P.No.3633 of 2009 4 order compensation equal to the cheque amount. The sentence is not at all harsh. If at all erred, it is only towards leniency. There is no reason to interfere with the sentence. In the result, the revision petition is dismissed. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj