IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 224 of 2004(C) ------------------------------ CC.1149/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, ERNAKULAM ................. REVN. PETITIONER / APPELLANT / ACCUSED : ---------------------------------------------------------------- 1. M/S.SARATH EXPORTS, KALAPURAKKAL BUILDINGS, EDACOCHI, KOCHI-6. 2. RAMACHANDRAN, PROPRIETOR, M/S.SARATH EXPORTS, KALAPURAKKAL BUILDINGS, EDACOCHI, KOCHI-6. BY ADVS. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN RESPONDENT / RESPONDENT / RESPONDENT : ------------------------------------------------------------------ 1. K.D.MADAN & CO KOCHIN CAMABER ANNEX, BRISTOW ROAD, KOCHI-3 REPRESENTED BY THE POWER HOLDER N.B.SREEKUMAR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA. R1 BY ADVS. SRI.K.P.VIJAYAN SMT.P.F.ROSY SMT.C.B.SUMA DEVI SRI.SURESH SAMUEL SRI.V.M.SYAM KUMAR \ R2 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.224 of 2004. = = = = = = = = = = = = Dated this the 24th day of September, 2010. O R D E R The Revision Petitioner was prosecuted by the first respondent for offence under Section 138 of the Negotiable Instruments Act in CC.No.1149/1998 on the file of the Judicial Magistrate of the First Class-I, Ernakulam. The revision petitioner pleaded not guilty. Hence he was sent for trial. During the course of trial, on behalf of the first respondent, Pw1 was examined and Exts.P1 to P15 were marked. The revision petitioner denied the incriminating evidence and stated that he had discharged the entire liability on getting the first notice. On his side Ext.D1, a copy of bill of lading was produced. The learned Magistrate on appraisal of the evidence on record arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six Crl.RP.No.224/2004. -: 2 :- months and ordered to pay Rs.1,75,000/- as compensation to the first respondent under Sec.357(3) Crl.PC. Though he preferred Crl.Appeal No.620/2002, he was not successful. Now this revision petition. 2. The learned counsel for the revision petitioner advanced only one contention that in this case two notices were sent and that the prosecution is basing upon the second notice and in the light of the first notice the prosecution based upon the second notice is not sustainable. The learned counsel took me through the first notice. I find that evidently there is no demand for discharge of the liability. It is in the above circumstance, the second notice was issued. Since there is no demand for discharge in the first notice, the same cannot be taken as a valid notice contemplated under Sec.138(b) of the Negotiable Instruments Act. Whereas the 2nd one is valid notice made in time. The learned counsel for the revision petitioner fairly conceded that the 2nd notice is a valid one Crl.RP.No.224/2004. -: 3 :- made in time. In the above circumstances, prosecution is not vitiated because of the first notice. I find no good reason to interfere with the conviction for the reason that there are two notices. Ext.D1 also would establish that there was outstanding liability for the discharge of which cheque was issued. Though the revision petitioner had advanced a contention that he had discharged the liability on receipt of the first notice, there is no bit of document in proof of such discharge. Having gone through the judgment impugned, I find that Pw1 had succeeded to establish that Ext.P2 cheque was issued in discharge of the liability and that when it was presented for collection, as evidenced by Exts.P3 and P4 memos, the cheque was returned with the endorsement insufficient funds. Despite the acknowledgment of the notice demanding discharge of liability, copy of which is produced as Ext.P6, the liability was not discharged. The plea of discharge pleaded is not supported by any evidence. The existence of liability, Crl.RP.No.224/2004. -: 4 :- issuance of cheque, dishonour of the same, notice demanding discharge and failure to discharge liability was established by the evidence of Pw1. In the above circumstance, I find no reason to interfere with the conviction under challenge. Taking into account that the revision petitioner is a business man aged 55 years and the financial difficulties led him to face the prosecution, I find that the revision petitioner is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court and a fine of Rs.1,80,000/- would meet the ends of justice. 3. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till the rising of the court and a fine of Rs.1,80,000/- (Rupees one lakh eighty thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for six months. Out of the fine amount, if realised, Rs.1,75,000/- Crl.RP.No.224/2004. -: 5 :- (Rupees one lakh seventy-five thousand only) shall be paid to the first respondent as compensation under Sec.357(1) of the Code of Criminal Procedure. The revision petitioner is granted three months time to remit the fine. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE. Kvs/-