IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 Crl.Rev.Pet.No. 3395 of 2004(A) -------------------------------------------- CRA.96/2001 of ADDL.SESSIONS COURT, THODUPUZHA CC.42/1998 of JUDL. MAGI. OF FIRST CLASS COURT-I, THODUPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- K.K. BABURAJ, KOCHUVAZHAPPILLIL, KANJIRAMATTAM KARA, THODUPUZHA TALUK. BY ADV. MR.ANIL GEORGE MR.PAUL MATHEW (PERUMPILLIL) MR.SREEKUMAR RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. SARASWATHY AMMA, SECRETARY, SERVICE CO-OPERATIVE SOCIETY, KARIKODE, THODUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. R2 BY PUBLIC PROSECUTOR MR.RITHWIK. R1 BY ADV. MR.A.JAYASANKAR, MR.MANU GOVIND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.3395 of 2004. = = = = = = = = = = = = = Dated this the 15th day of October, 2009. O R D E R Revision petitioner is the accused in CC.No.42/1998 on the file of the Judicial Magistrate of the First Class-I, Thodupuzha. The first respondent 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. After the trial, the learned Magistrate arrived a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for one year with direction to pay Rs.39,500/-, the cheque amount as compensation to the first respondent Co-operative Society. Assailing the conviction and sentence Crl.Appeal No.96/2001 was preferred before the Addl.Sessions Judge, Thodupuzha. The Addl.Sessions Judge, Thodupuzha to Crl.R.P.No.3395 of 2004. -: 2 :- whom the appeal was made over, by judgment dated 9.2.2004 confirmed the conviction but the substantive sentence was reduced to imprisonment for six months. Assailing the legality, correctness and propriety of the conviction and sentence as reduced in appeal, this revision petition was filed. 2. Having heard either side and perusing the judgments of the courts below, I find that the Secretary of the first respondent who was examined as Pw1 supported by the evidence of Pw2 and Exts.P1 to P6 had succeeded to establish that the revision petitioner owed a sum of Rs.39,500/- to the first respondent Society and in discharge of said liability Ext.P2 cheque was issued. When Ext.P2 was presented for collection, as evidenced by Ext.P3 memo it was dishonoured for insufficiency of funds. Though a lawyer notice was sent demanding repayment of the amount the liability was not discharged. The plea of the revision petitioner was that Ext.P2 cheque was obtained by force. Crl.R.P.No.3395 of 2004. -: 3 :- But he didn’t care to adduce any supporting evidence. The result is that the evidence of Pws.1 and 2 remains uncontroverted. There is no reason to disbelieve Pws.1 and 2. I find that the courts below had correctly appreciated the evidence and found the revision petitioner guilty. The conviction is based upon cogent evidence. There is no reason to interfere with the conviction. 3. Having taken into account that because of the failure on the part of the revision petitioner to remit the dues to the Co-operative Society, revenue recovery proceedings were initiated and at that time Ext.P2 cheque was issued and that financial difficulties led the revision petitioner to face the prosecution, I find that the revision petitioner is entitled to leniency in awarding sentence and that a sentence of imprisonment till rising of the court and a compensation of Rs.50,000/- would meet the ends of justice. 4. In the result, the revision petition is allowed in part. The conviction under challenge is confirmed. The Crl.R.P.No.3395 of 2004. -: 4 :- substantive sentence is reduced to imprisonment till rising of the court with a compensation of Rs.50,000/-. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for six months. The amount, if any is deposited, shall be given credit to. P.S.GOPINATHAN, JUDGE. Kvs/-