IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 Crl.Rev.Pet.No. 2860 of 2009() ------------------------------ CRA.273/2007 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)III, KASARAGOD CC.273/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT II, KASARAGOD. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- N.CHANDRAN, AGED 50 YEARS, S/O.NARAYANAN, ANJENEYA AUTO WORKS, CHETTUMKUZHI, HIDAYATH NAGAR P.O., MADUR VILLAGE, KASARAGOD DISTRICT. BY ADV. MR.M.SASINDRAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. SARASWATHY, AGED 34 YEARS, D/O.RATHNAKARA, KANNIVALAPPU, KUDULU VILLAGE, RAMDAS NAGAR P.O., KASARAGOD TALUK. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = Crl.R.P.No.2860 of 2009. = = = == = = = = = = = = = = = = = = Dated this the 10th day of September, 2009. O R D E R The first respondent herein prosecuted the revision petitioner before the Judicial Magistrate of the First Class-II, Kasaragod alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate after due trial arrived a finding of guilty against the revision petitioner. Consequently he was convicted and sentenced to simple imprisonment for six months under Sec.138 of the Negotiable Instruments Act and was directed to pay a sum of Rs.76,000/- as compensation under Sec.357(3) of the Crl.P.C. to the first respondent. In default to pay compensation, the revision petitioner has to undergo simple imprisonment for three months. In appeal, the learned Addl.Sessions Judge, Adhoc-III, Kasaragod confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred. 2. The learned counsel for the revision petitioner is heard and went through the judgments of the courts below. It is revealed that in discharge of a liability amounting to Rs.76,000/- the revision petitioner Crl.R.P.No.2860 of 2009. -: 2 :- issued Ext.P1 cheque dated 14.12.2005 drawn on North Malabar Gramin Bank, Madhoor Branch in favour of the first respondent. When Ext.P1 was sent for collection it was returned dishonoured for insufficient funds along with Ext.P2 memo and Ext.P3 intimation. Demanding discharge of liability, a notice, copy of which is marked as Ext.P4 was sent. Though the revision petitioner acknowledged the notice on 29.1.2006, the liability was not discharged. Hence the prosecution was launched on 14.2.2006. The evidence of the 1st respondent as Pw1 supported by Exts.P1 to P5 would convincingly establish the due execution of Ext.P1 cheque. Her evidence is further supported by legal presumptions under Sec.118 and 139 of the Negotiable Instruments Act that it was drawn for due consideration and issued in discharge of liability. The revision petitioner could not rebut the legal presumption. The omission to respond to the lawyer notice to discharge the liability also would stare at the revision petitioner. The courts below had on appraisal of evidence on record found against the revision petitioner. I could not find any error, impropriety or illegality in the concurrent findings of the courts below. The revision petitioner was convicted on the basis of evidence establishing the execution of the cheque and dishonour of the same for want of funds and failure to discharge the Crl.R.P.No.2860 of 2009. -: 3 :- liability despite the demand to discharge. The conviction under challenge is unassailable. But having due regard to the fact that the revision petitioner is a middle aged man and that an ordinary money transaction has led him to face the prosecution, I find that it would be just and appropriate to reduce the substantive sentence to one till rising of the court. In all other respects the judgment under challenge is liable to be confirmed. 3. In the result, the revision petition is allowed in part. While confirming conviction the substantive sentence is reduced to one for imprisonment till rising of the court. The direction to pay compensation as well as the default clause is sustained. The revision petitioner is granted six months' time to pay compensation. The revision petitioner shall appear before the trial court on 5.10.2009 for suffering the substantive sentence and shall execute a bond for Rs.25,000/- (Rupees twenty-five thousand only) with two solvent sureties each for like amount to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE. Kvs/-