IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Crl.Rev.Pet.No. 3168 of 2009 ------------------------------ C.C.NO.384/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA DATED 25.09.08 CRL.APPEAL NO.481/2008 OF ADDL.SESSIONS COURT (FAST TRACK)-I, ALAPPUZHA DT.07.08.09. REVISION PETITIONER/APPELLANT/ACCUSED -------------------------------------- R.GOPIDAS, AGED 62,S/O.RAGHAVAN,VELIYIL VEEDU, KALAVOOR P.O.,ALAPPUZHA. BY ADV. SRI.B.S.SIVAJI RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. S.AMBI,S/O.LATE SUKUMARAN, ROHINI,NORTH ARYADU P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: shg/ P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 3168 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2009 O R D E R 1. Revision petitioner is the accused in C.C. No.384/2006, a complaint filed before the Chief Judicial Magistrate, Alappuzha by the 1st respondent alleging offence under Section 138 of the Negotiable Instruments Act. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. After trial, the learned Chief Judicial Magistrate found the revision petitioner guilty. Consequently he was convicted and sentenced to imprisonment till rising of the court and a fine of Rs.2,00,000/-, which is the cheque amount, with default clause of simple imprisonment for three months. The fine amount, if realised, was ordered to be paid to the 1st respondent as compensation under Section 357 (1) of the Code of Criminal Procedure. Aggrieved by the said conviction and sentence, revision petitioner preferred Crl.R.P.No. 3168 of 2009 2 Criminal Appeal No.481/2008. In appeal, the conviction was confirmed. Substantive sentence was set aside. Taking into account that the revision petitioner paid back a sum of Rs.1,18,000/-, the fine was reduced to Rs.82,000/- with a default clause to undergo simple imprisonment for two months. Assailing the legality, correctness and propriety of the above conviction and sentence modified in appeal this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the 1st respondent through the evidence of PW1 and 2 supported by Exts.P1 to P7 had succeeded to establish that the revision petitioner owed a sum of Rs.2,00,000/- to the 1st respondent and in discharge of the said liability Ext.P1 cheque was issued. When Ext.P1 was sent for collection it was returned dishonoured for insufficiency of funds as evidenced by Ext.P2 memo. Demanding discharge of the liability a lawyer notice was caused, but the liability was not discharged. Revision Crl.R.P.No. 3168 of 2009 3 petitioner took a contention that a friend of the revision petitioner who was examined as DW1 borrowed Rs.1,00,000/- for which Rs.1,18,000/- was paid to revision petitioner and that as a security for the transaction the cheque in dispute was issued. But DW1 had deposed that he repaid Rs.2,39,000/- to the respondent. The evidence of DW1 in the absence of proof regarding discharge was disbelieved. So also, story that only Rs.1,00,000/- was borrowed was disbelieved by the courts below. The defence plea and evidence are mutually contradictory. On the other hand, the evidence of PW1 is supported by Ext.P1 and the presumption under Section 118 and 139 of the Negotiable Instruments Act. In the appeal learned Sessions Judge had taken note of the fact that PW1 had admitted in cross- examination that Rs.1,18,000/- was repaid. It is taking into account of the admission of PW1, the fine was reduced to Rs.82,000/-. The evidence of DW1 is not at all sufficient to disbelieve the evidence of PW1 supported by Ext.P1 that the liability was Rs.2,00,000/- and that in discharge of that Crl.R.P.No. 3168 of 2009 4 Ext.P1 cheque was issued. So the conviction is based upon cogent evidence. I find little reason to interfere with the conviction. Taking note that the revision petitioner is a senior citizen and that he paid back Rs.1,18,000/-, in appeal the sentence was confined to a fine of Rs.82,000/-. That is also appropriate. The sentence is not harsh. 3. The revision petition is devoid of any merit. Accordingly it is dismissed. The revision petitioner is granted six months time to pay the fine amount provided he executes a bond for Rs.20,000/- with two solvent sureties each for the like amount to the satisfaction of the trial court. P.S. GOPINATHAN JUDGE shg/