IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 1556 of 2003() ------------------------------ C.C.153/01 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM C.R.A.392/02 OF SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- M.C.MANI, S/O.CHACKO, MANIMALA HOUSE, KOORALI.P.O., ELANGULAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S)/RESPONDENTS/COMPLAINANT : --------------- 1. MURALI KUMAR, S/O.RAGHAVAN NAIR, PROPRIETOR, THOTTUVAYIL AGENCIES, PONKUNNAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1556 OF 2003 --------------------------------------------- Dated 12th August, 2010 O R D E R Petitioner, the accused in C.C.153/2001 on the file of Chief Judicial Magistrate, Kottayam filed this revision challenging the concurrent conviction and sentence for the offence under Section 138 of Negotiable Instruments Act. First respondent lodged the complaint contending that the petitioner used to purchase construction materials on credit basis and towards discharge of liability issued Exts.P1 and P2 cheques for Rs.1,00,000/- each dated 9/12/2000 drawn in his account maintained in Elikulam Service Co-operative Bank. When the cheques were presented for encashment through South Indian Bank they CRRP 1556/03 2 were dishonoured for want of sufficient funds. First respondent sent Ext.P6 notice demanding the amount covered by the dishonoured cheques. Though petitioner received the notice, he did not pay the amount and thereby committed the offence. Learned Magistrate took cognizance of the offence. On appearance petitioner pleaded not guilty. First respondent was examined as PW1. Postman and Postmaster were examined as Pws.2 and 3. Exts.P1 to P11 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found him guilty and was convicted and sentenced him to simple imprisonment for three months and compensation of Rs.2,00,000/- under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.392/2002. Learned CRRP 1556/03 3 Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel appearing for the petitioner submitted that in the light of the evidence on record and the concurrent findings of fact, petitioner is not challenging the conviction but sentence may be modified. Learned counsel submitted that petitioner has already filed an insolvency petition before Sub Court, Kottayam and has placed his property for disposal before that Court and in such circumstances, leniency may be shown and substantive sentence may be reduced. 4. Learned Magistrate and learned CRRP 1556/03 4 Sessions Judge on proper appreciation of evidence found that petitioner had purchased construction materials from the first respondent on credit basis and more than Rs.2,26,898/- was due. When Exts.P1 and P2 cheques were issued towards discharge of the liability, those cheques were dishonoured for want of sufficient funds. Even though petitioner raised a contention at the time of trial that he did not receive Ext.P6 notice, in the light of the evidence of Pws.2 and 3 the Postman and the Postmaster, that contention was not pressed at the time of arguments. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. The only question is regarding the sentence. Cheques were issued in December, CRRP 1556/03 5 1992 for Rs.1,00,000/- each. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and adequate compensation to the first respondent. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. In supersession of the sentence awarded by the learned Chief Judicial Magistrate as confirmed by learned Sessions Judge, petitioner is sentenced to imprisonment till rising of court and compensation of Rs.2,10,000/- and in default simple imprisonment for three months. Though learned counsel appearing for the petitioner sought time for payment of the CRRP 1556/03 6 compensation, considering the fact that revision has been pending before this court from 2003, he is not entitled to get further time. Petitioner is directed to appear before the Chief Judicial Magistrate, Kottayam on 9/9/2010. Chief Judicial Magistrate, Kottayam is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.