IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3946 of 2006(C) ------------------------------ CRA.80/2005 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.506/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SABU KOSHY, S/O.T.M.CHACKO, PAINIKKARA VEEDU, KODUKULANJI P.O. BY ADV. SRI.A.SHAFEEK RESPONDENT(S): RESPONDENT/ COMPLAINANT ------------------------------------------------------- 1. CHANDRAN PILLAI, MELEPARAMBIL, PENNUKKARA P.O., CHENGANNUR. 2. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM, THROUGH THE POUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.HARIDAS FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 3946 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Mavelikkara in Crl.A.80/05. The said appeal was preferred against the conviction and sentence passed in C.C.506/02 by the Judicial First Class Magistrate, Chengannur. The trial court convicted the accused u/s 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of two months and to pay a compensation of Rs.40,000/- u/s 357(3) Cr.P.C. It was confirmed in appeal by the appellate court. It is against that judgment the revision is preferred. 2. Heard the learned counsel for the revision petitioner as well as the first respondent. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.40,000/- and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with endorsement insufficiency of funds. Though a CR.R.P. 3946 OF 2006 -:2:- statutory notice was issued it was not replied and thereafter action was initiated. It appears that the defence of the revision petitioner is to the effect that there was a chitty transaction and towards security for the said transaction he had given a blank cheque which had been utilized by the complainant to file a false complaint. The learned counsel for the revision petitioner strongly contends before me that the evidence of the complainant is not reliable or trustworthy for the reason that though he was put a question in the cross- examination regarding the conduct of a kuri he denied it and when documents were produced and he was examined he was forced to admit the same thereby it has to be held that what he speaks is not true. Both the Courts considered the argument of the learned counsel for the revision petitioner and especially the appellate court found that at the time of 313 examination there was no case for the revision petitioner that he had issued a blank cheque. It further found that the revision petitioner had not sent any reply to the notice by the complainant. It also, in the course of the discussion of the CR.R.P. 3946 OF 2006 -:3:- case, found that the alleged chitty transaction is of the year, 2001 whereas the cheque is of the year 2002 and just because there has been an earlier denial of joining any chitty by the complainant his evidence need not be brushed aside. The Courts below also appreciated the evidence of DW2 but according to him had seen the whole transaction at a busy junction which was totally not acceptable to the Courts below and rightly too. Therefore there is no mis-appreciation of evidence or any perversity or illegality in the decision arrived at by the Courts below in finding the accused guilty u/s 138. 3. The next is regarding the sentence. The learned counsel for the revision petitioner pleads for leniency in sentence. I think there can be leniency and the compensation can be converted into that of fine. Therefore the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.40,000/- which on realisation CR.R.P. 3946 OF 2006 -:4:- be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. (4) The revision petitioner shall appear before the trial court to receive the sentence on 5.2.2009 and also for payment of fine. In default, the trial court is directed to execute the sentence. (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-