IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.Rev.Pet.No. 1267 of 2001 ------------------------------ CRA.274/2001 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.348/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ VALSAN GEORGE, S/O.GEORGE, KARIMANKULAM HOUSE, VETTILAPARA P.O., CHALAKUDY. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JANSON M. XAVIOR, MAPPILASSERI HOUSE, VAILOPPILLY LANE, AZAD ROAD, KALOOR. R1 BY PUBLIC PROSECUTOR, SRI. C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1267 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April 2008 ORDER Petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.2 herein. The trial court found the petitioner guilty and he was accordingly convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for two more months. 2. In appeal, the Sessions Court, while confirming the order of conviction, reduced the sentence to simple imprisonment for four months. But, the direction to pay the fine amount to the complainant was retained. 3. Though this revision petition has been pending before this court for the last about 7 years, the complainant has not been served with notice so far. It is conceded by the learned counsel for the petitioner that the whereabouts of the complainant are not known. 4. The case of the complainant was that the petitioner/accused had borrowed a sum of Rs.35,000/- from him Crl.R.P.No.1267 OF 2001 :: 2 :: and issued Ext.P1 cheque in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory notice issued by the complainant did not evoke any response. Hence the complaint. 5. The complainant was examined as PW1 and Exts.P1 to P4 were marked on his side. The accused got himself examined as DW1 and Ext.C1, ledger extract of the bank account was marked in the case. 6. The learned Magistrate, on a careful evaluation of the oral and documentary evidence, found that the complainant had established his case satisfactorily. Significantly, the accused had admitted that he had issued Ext.P1 cheque in favour of the complainant. But according to him, the cheque was issued in order to enable the complainant to convince his creditors that he was a man of means. The trial court did not accept this contention because evidently the accused had failed to substantiate the same. It was also found by the trial court that the complainant had Crl.R.P.No.1267 OF 2001 :: 3 :: complied with all statutory requirements before launching the prosecution. 7. The appellate court had re-evaluated the oral and documentary evidence on record and found that the order of conviction was legally valid and sustainable. 8. Having perused the materials available on record, I do not find any reason to interfere with the concurrent order of conviction. However, in the matter of sentence I am satisfied that petitioner is entitled to get some leniency. Therefore, while confirming the order of conviction, petitioner is afforded an opportunity to pay off the liability since learned counsel submits that the petitioner is prepared to do so. Therefore, petitioner shall appear before the trial court on August 5, 2008 and undergo imprisonment till the rising of the court. He shall also remit Rs.40,000/- as compensation under Section 357(3) of the Code. If the petitioner fails to appear and remit the amount, the sentence imposed on him by the appellate court shall stand confirmed. The amount, if any, deposited by the Crl.R.P.No.1267 OF 2001 :: 4 :: petitioner in this case shall be given credit while making the deposit as directed. (A.K.BASHEER, JUDGE) jes