IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 Crl.Rev.Pet.No. 3356 of 2009() ------------------------------------------ CRA.1084/2006 of ADDL. SESSIONS FAST TRACK COURT-I, THIRUVANANTHAPURAM. ST.448/2006 of JUDL. FIRST CLASS MAGISTRATE COURT-VII, THIRUVANANTHAPURAM. .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- R. CHANDRAN, VENKETESWARA FILMS, NEAR POLICE TRAINING COLLEGE, THYCAUD, THIRUVANANTHAPURAM. BY ADV. MR.AJITH KRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. A.C. RAJ, T.C.4/514, SREEVILAS LANE, KOWDIAR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.3356 of 2009. = = = = = = = = = = = = Dated this the 29th day of October, 2009. O R D E R Revision petitioner is the accused in ST.No.448/2006 on the file of the Judicial Magistrate of the First Class-VII, Thiruvananthapuram. The first respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. Since the revision petitioner pleaded not guilty he was sent for trial. After the trial, the learned Magistrate arrived a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months with direction to pay Rs.80,000/- as compensation to the first respondent. Assailing the conviction and sentence Crl. Appeal No.1084/2006 was preferred before the Sessions Judge, Thiruvananthapuram. The Addl.Sessions Judge, Thiruvananthapuram to whom the appeal was made over, Crl.R.P.No.3356 of 2009. -: 2 :- by judgment dated 22.8.2009 confirmed the conviction. But the substantive sentence was reduced to imprisonment for three months. Assailing the legality, correctness and propriety of the conviction and sentence as modified in appeal, this revision petition was filed. 2. Having heard either side and perusing the judgments of the courts below, I find that the first respondent who was examined as Pw1 supported by Exts.P1 to P5 had succeeded to establish that the revision petitioner owed a sum of Rs.77,000/- to the first respondent and in discharge of said liability Ext.P1 cheque dated 10.9.2004 was issued. When Ext.P1 was presented for collection it was dishonoured, as evidenced by Ext.P2 memo dated 4.3.2005, for insufficiency of funds. Though a lawyer notice, copy of which was marked as Ext.P3 dated 10.3.2005 was sent demanding discharge, the liability was not discharged. The revision petitioner advanced a defene that he didn’t owe a liability and that a signed cheque was Crl.R.P.No.3356 of 2009. -: 3 :- lost from his possession. But he didn’t care to adduce any evidence. The result is that the evidence of Pw.1 remains uncontroverted. Regarding liability, the evidence of Pw1 is supported by the presumption under Sec.139 of the Negotiable Instruments Act. The revision petitioner failed to rebut that legal presumption. There is no reason to disbelieve Pw.1. I find that the courts below had correctly appreciated the evidence and found the revision petitioner guilty. The conviction is based upon cogent evidence. There is no reason to interfere with the conviction. 3. It is seen that failure in business transaction and the financial difficulties led the revision petitioner to face the prosecution. In the above circumstance, I find that the revision petitioner is entitled to a little more leniency in sentence and that a sentence of imprisonment till rising of the court and a compensation of Rs.80,000/- would meet the ends of justice. 4. In the result, the revision petition is allowed in Crl.R.P.No.3356 of 2009. -: 4 :- part. The conviction under challenge is confirmed. The substantive sentence is reduced to imprisonment till rising of the court with a compensation of Rs.80,000/-. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for six months. The amount, if any, deposited shall be released to the first respondent as compensation under Sec.357(1) Crl.P.C. P.S.GOPINATHAN, JUDGE. Kvs/- After the last paragraph in the order dated 29/10/2009 in Crl.RP 3356/2009, the following paragraph is added, “ The revision petitioner is granted six months time to pay the compensation amount. Till then the bond executed by him shall remain in force”. (Vide order dated 11/11/2009 in Crl.MA 11078/2009 in Crl.RP 3356/2009.) Sd/- Registrar (Judicial)