IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 CRRP.No. 1412 of 2002 ( ) ------------------------------- CRA.579/2001 of SPL.C SPE/CBI-II&4 ADDL.DIST. COURT., ERNAKULAM. CC.523/1999 of J.M.F.C.-II, KOCHI ------------- REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- MR. K.J. TENESON, S/O. K.K. JOHN, RESIDING AT C.C.XVIII/1080 KONNOTH HOUSE KOCHUPALLY ROAD THOPPUMPADY COCHIN - 682 005. BY ADVS.SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW COMPLAINANTS/RESPONDENTS/COMPLAINANTS: ---------------------------------------------------------- 1 MR. XAVIER D. KALARIKKAL ALIAS XAVIER DANIEL KALARIKKAL HOUSE KOCHUPALLY ROAD THOPPUMPADY COCHIN - 682 005. 2 STATE OF KERALA REP. THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.V.SANTHARAM SRI.M.RISHIKESH SHENOY R2 BY PUBLIC PROSECUTOR SMT.SEERA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1412 OF 2002 ----------------------------------------- Dated this the 21st day of December 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently by the two courts below. Sentence imposed against him, as affirmed by the sessions judge in appeal, is simple imprisonment for three months with direction to pay compensation of `.99,000/- to the complainant with default term of simple imprisonment for three months more. 2. Notice given, the 1st respondent/complainant has entered appearance. 3. The accused in the above case was prosecuted for the offence under Section 138 of the NI Act on two complaints by the same complainant in respect of two cheques issued by him, both of which got dishonoured on presentation due to insufficiency of funds in his account. Resisting the prosecution he had contended that the transaction which he had with the complainant was only for much Crl.R.P No.1412 OF 2002 2 lesser sum and at that point of time two cheques had been obtained by the complainant as security. That defence was sought to be examined by examining one witness. The trial magistrate as well as the sessions judge, after scrutiny of the materials, found that there is no merit in the defence canvassed by the accused. Apart from other materials, the complainant has also produced a receipt. Ext.P1, evidencing that the two cheques involved in the two complaints were issued by the accused towards discharge of a liability which he owed to the complainant. When complainant was examined as PW1, no challenge to Ext.P1 receipt was made by the accused was also taken note by the trial magistrate to conclude that the defence set up to resist the prosecution was unworthy of any merit. It was also noticed that the accused has not challenged the signatures appearing in the cheques as having not been subscribed by him. I do not find any infirmity in the finding on fact entered against the accused repelling his defence, by the trial magistrate, which has been affirmed by the sessions judge as well after reappraisal of the evidence. Conviction entered against the accused is found to be based on unimpeachable legal evidence. 4. So far as the sentence imposed against the accused, having regard to the fact that the liability arising under a cheque is primarily a civil liability, I find that the substantive term of imprisonment directing him to undergo imprisonment for two months calls for modification. Crl.R.P No.1412 OF 2002 3 Other than that the accused has set up a false defence there is no exceptional circumstances justifying the imposition of a harsh punishment directing the petitioner to undergo incarceration for the period fixed by the two courts below. So much so, the substantive term of imprisonment imposed against him shall stand reduced to imprisonment till the rising of the court, but, retaining compensation awarded with the default term of imprisonment. Affirming the conviction, substantive term of imprisonment imposed against the accused is reduced to imprisonment till the rising of the court retaining the compensation awarded with the default term of imprisonment as fixed by the court below. Subject to the modification of the sentence as indicated above, revision is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge