IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 27TH AUGUST 2010 / 5TH BHADRA 1932 Crl.Rev.Pet.No. 2564 of 2010() ------------------------------ CRA.350/2009 of ADDL.SESSIONS COURT, KOZHIKODE ST.1767/2006 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- ------------------------------------------------------------------ N.VISWANATHAN,AGED 58,S/O.GOVINDAN, RAILWAY GUARD,NOCHIKATTU HOUSE,KOLAKKAD.P.O, MALAPPURAM. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE:- ------------------------------------------------------------------------------------ 1. GIRISH KUMAR,S/O.BALAN,AGED 47, MADATHIL HOUSE,FEROKE AMSOM,NALLUR DESOM, KOZHIKODE-673631. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.BENNY VARGHESE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = = = Crl.R.P.No.2564 of 2010. = = = = = = = = = = = = = = Dated this the 27th day of August, 2010. J U D G M E N T The Judicial Magistrate of the First Class-V, Kozhikode in ST.No.1767/2006 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months and ordered to pay Rs.one lakh, the cheque amount as compensation to the first respondent, who prosecuted the revision petitioner. Feeling aggrieved, he preferred Crl.Appeal No.350/2009. The learned Sessions Judge by judgment dated 8.6.2010 confirmed the conviction, but reduced the sentence to imprisonment till the rising of the court and a fine of Rs.one lakh with a default sentence of simple imprisonment for three months and with order to pay the fine as compensation. Assailing the above conviction and sentence as reduced in appeal, this revision petition was filed. Crl.R.P.No.2564 of 2010. -: 2 :- 2. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the first respondent who was examined as Pw1 had succeeded to establish that the revision petitioner had owed a sum of Rs.one lakh to the first respondent and in discharge of that liability Ext.P1 cheque dated 10.8.2005 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficient funds as evidenced by Ext.P2 memo. Though a lawyer notice, copy of which was marked as Ext.P3 demanding discharge of the liability was acknowledged as evidenced by Ext.P5, the liability was not discharged. 3. The learned counsel for the revision petitioner pointed out my attention to the defence that the cheque was issued to one Sadanandan for borrowing some amount and that the said liability was discharged but the cheque was not returned and misusing that cheque the prosecution was launched. According to the learned counsel, in the light of Crl.R.P.No.2564 of 2010. -: 3 :- the defence contention the first respondent had not succeeded to establish the existing liability and issuance of the cheque. In support of his argument the learned counsel had also given reliance to the decision of this Court in Padmanabhan v. Vasudevan Namboodiri (2010 (3) KLT 216) wherein it was held that, ‘it is the burden of the complainant to prove the execution of the cheque'. Having gone through the facts of the case on hand and one in the decision reported, I find that the set of facts in the reported decision is entirely different. Here, in this case, it is pertinent to note that there was no other set of transaction between the parties. Though the revision petitioner acknowledged the notice demanding liability, there was no reply. The silence on the side of the revision petitioner after acknowledging notice looms large. The courts below had canvassed the presumptions under Sec.118 and 139 of the N.I.Act that Ext.P1 was drawn for valuable consideration and issued in discharge of the liability in Crl.R.P.No.2564 of 2010. -: 4 :- favour of the first respondent in the given set of facts. The evidence of Dw1 is not at all sufficient to rebut the presumption or to impeach the evidence of Pw1. Pw1 withstood searching cross examination. There is no material on record to show that Ext.P1 is the cheque that was given to Sadanandan or that Pw1 got Ext.P1 in any manner other than what was deposed by Pw1. Defence version was disbelieved by the courts below. I find little reason to conclude that the courts below were anyway erred. In the above circumstance, I find that the Courts below had correctly appreciated the evidence on record and rightly come to a conclusion regarding the guilt of the revision petitioner. The finding of guilt is not vitiated by any error, illegality or impropriety. 4. The appellate court was very lenient in confining the substantive sentence to imprisonment till the rising of the court. The fine imposed is just and appropriate. Sentence requires no modification. Crl.R.P.No.2564 of 2010. -: 5 :- In the result, the revision petition is devoid of merit and it is accordingly dismissed. The revision petitioner is granted six months time to remit the fine amount. Till then, the bail bond executed by him shall remain in force. Any deposit during the appellate stage shall be given credit to. P.S.GOPINATHAN, (Judge) Kvs/-