IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 Crl.Rev.Pet.No. 2310 of 2009(C) -------------------------------------------- CRL.A.NO.542/2004 OF ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM, CC.NO.39/2002 OF JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), THIRUVANANTHAPURAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------- A.D.ALEX, S/O.DAVID, AGED 42 YEARS, ANIL NILAYAM, VADAKKEVILA VILLAGE, PATTATHANAM (EAST), KOLLAM – 21. BY ADV. MR.A.SHAFEEK KAYAMKULAM. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. A.PHILIP RYSON, T.C.NO.34/580, POOMUTTAM VEEDU, BEACH P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.V.AJAKUMAR, MR.T.M.CHANDRAN, R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.2310 of 2009 ---------------------------------------- Dated this the 26th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.39 of 2002 on the file of the Judicial Magistrate of the First Class-IV (Mobile), Thiruvananthapuram. The first respondent herein 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. On the side of the first respondent PW.1 was examined and Exts.P1 to P6 were marked. When questioned under Section 313 Code of Criminal Procedure, the revision petitioner took up a defence that his brother borrowed Rs.3 lakhs from the first respondent and as a security Exts.P1 and P1(a) cheques were issued. The revision petitioner adduced evidence in support of his contention. The trial court on an evaluation of the evidence arrived a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for 3 months with direction to pay Rupees three lakhs to the first Crl.R.P.No.2310 of 2009 2 respondent as compensation under Section 357(3) of the Code of Criminal Procedure. In default, he was ordered to suffer simple imprisonment for one month. 2. Being aggrieved the revision petitioner preferred Criminal appeal No.542 of 2004 before the Sessions Judge, Thiruvananthapuram. The Additional Sessions Judge (Fast Track Court III), Thiruvananthapuram, to whom the appeal was made over, by judgment dated 14/8/2008 confirmed the conviction. But, the substantive sentence was reduced to imprisonment till rising of the court. The direction to pay compensation was sustained with a default clause to undergo simple imprisonment for 4 months. 3. Assailing the legality, correctness and propriety of the above conviction as modified in appeal, this revision petition was filed. 4. Having heard either side, I find that the first respondent who was examined as PW.1, supported by Exts.P1 to P6 had succeeded to establish that, the revision petitioner owed a sum of Rs.3 lakhs to the first respondent and in discharge of the said liability Ext.P1(a) series, 2 cheques, one for Rs.1 lakh and other for Rs.2 lakhs were issued and that when Ext.P1 series Crl.R.P.No.2310 of 2009 3 were sent for collection it was returned bounced for insufficiency of funds as evidenced by Ext.P2 series and P3 series memos. Demanding discharge of the liability, a lawyer notice dated 19/11/2001, copy of which was marked as Ext.P4 was issued. Despite the acknowledgment of notice as evidenced by Ext.P6, the liability was not discharged. The evidence of PW.1 is further supported by the legal presumption under Sections 119 and 139 of the Negotiable Instruments Act. In the light of the evidence adduced by PW.1 the courts below disbelieved the evidence of DW.1. The defence that it was the brother who owed to the 1st respondent is not convincing. I find no error, illegality or impropriety committed by the courts below in believing PW.1 and disbelieving DW.1. I find that the conviction under challenge is unassailable. 5. The appellate court was very lenient in reducing the sentence to one for imprisonment till rising of the Court. The direction to pay compensation with default clause ordered by appellate court is also just and proper. I find no reason to interfere with the sentence also. Crl.R.P.No.2310 of 2009 4 In the result, the revision petition is devoid of merit and accordingly it is dismissed. The revision petitioner is granted six months time for payment of the compensation provided he executes a bond for Rs.15,000/- (Rupees fifteen thousand only) with 2 solvent sureties each for like sum to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE skj