IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 Crl.Rev.Pet.No. 925 of 2004(A) ------------------------------ AGAINST THE JUDGMENT IN S.T.5473/99 OF THE J.F.M.C.-I, THRISSUR CRL.A. 212/03 OF III ADDL. SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, THRISSUR REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.K.SUBRAMANIAN S/O. KUNJAN, POTTAYIL HOUSE, P.O.CHIYYARAM, THRISSUR-680 026. (OLLUR POLICE STATION LIMITED) BY ADV. SRI.P.A.CHANDRAN RESPONDENT(S): COMPLAINAT ------------------------- JAVERT.G.AKKARA, AKKARA HOUSE, NOBLE STREET P.O., NADATHARA, THRISSUR-680 751 BY ADVS. M/S. P.K. ASOKAN & M.R. VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3.4.2009, THE COURT ON 08/04/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 925 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2009 O R D E R This Crl.R.P. is filed by the accused in S.T.No. 5473 of 1999 on the file of the J.F.C.M.-I, Trichur. S.T. 5473 of 1999 is based on a complaint alleging commission of the offence punishable under Section 138 of the N.I. Act. 2. The case of the complainant is briefly as follows. The accused borrowed Rs.25,000/- from the complainant in March, 1999. When the complainant demanded back that amount, the accused issued Ext.P1 cheque dated 20.4.1999 for that amount. When the complainant presented the cheque for encashment, it was dishonoured as there was no sufficient funds in the account of the accused. The complainant issued statutory notice on 19.5.1999, which was returned unserved. The complaint was filed on 2.6.1999. Crl.R.P.No. 925 of 2004 2 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to 6 were marked. No evidence was adduced on the side of the accused. The learned Magistrate, on considering the evidence, found the accused guilty under Section 138 of the N.I. Act and he was convicted and sentenced to undergo S.I. for a period of three months. Against that conviction and sentence, the accused filed Crl.A. No.212 of 2002 before the Sessions Court, Trichur, which was made over to the Fast Track Court No.I, Trichur. The Fast Track Court, as per judgment dated 29.11.2003, allowed the appeal in part and the conviction of the accused under Section 138 of the N.I. Act was confirmed, but modified the sentence and the accused was sentenced to undergo S.I. for a period of one month and to pay compensation of Rs.27,000/- to the complainant, in default to undergo S.I. for a period of one month. Against that judgment, the accused filed this revision petition. Crl.R.P.No. 925 of 2004 3 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 5. It is a well settled principle that normally the jurisdiction of the High Court in revision has to be exercised only in exceptional cases, when there was glaring defect in the procedure or there was manifest error on a point of law, which has consequently resulted in flagrant miscarriage of justice. 6. The complainant was examined as PW1. He swears that the accused borrowed an amount of Rs.25,000/- from him in the first week of March, 1999 and when he demanded back that amount, the accused issued Ext.P1 cheque dated 20.4.1999 for that amount . When PW1 presented the cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Exts.P2 and P3 are the memos issued from the Bank dated 3.5.1999 and 13.5.1999 respectively. When Ext.P1 cheque was dishonoured, PW1 sent statutory notice dated 19.5.1999 which was despatched on 20.5.1999, as evidenced by Ext.P5 postal receipt. Ext.P6 is the returned notice. The postal Crl.R.P.No. 925 of 2004 4 endorsement on Ext.P6 shows that intimation was served on 22.5.1999, but the accused did not claim the registered article. When PW1 was cross examined, he denied the suggestion that Ext.P1 was issued only as a security when the accused availed a loan from Vithayathil Finance. The burden is on the accused to prove that Ext.P1 was issued only as a security. But the accused has not adduced any evidence to prove the same. As observed by the learned Magistrate and the Appellate Court, there is no reason to disbelieve the case of PW1 that the accused issued Ext.P1 cheque to discharge the legally recoverable debt due to him from the accused. PW1 has complied with all legal formalities required under Section 138 of the N.I. Act. As the trial court and the appellate court have not committed any error on facts or law in convicting the accused under Section 138 of the N.I. Act, I find no reason to interfere with that concurrent finding. Crl.R.P.No. 925 of 2004 5 7. In the decision reported in George v. Kamarudeen (2007 (1) KLT 759), it was held that a substantive sentence of imprisonment till rising of the court would be sufficient in the case of offence under Section 138 of the Act to meet the ends of justice, particularly in view of the fact that adequate compensation has been awarded. In view of the principle laid down in the above decision, I am of the view that the ends of justice would be met by sentencing the accused to undergo imprisonment till rising of the court and by confirming the sentence to pay compensation of Rs.27,000/- to the complainant. 8. In the result, this Crl.R.P. is allowed in part. The conviction of the accused in C.C. 5473 of 1999 on the file of the Judicial First Magistrate Court-I, Trichur under Section 138 of the N.I. Act is confirmed. The sentence is modified and the accused is sentenced to undergo imprisonment till rising of the court. The sentence to pay compensation of Rs.27,000/- to the complainant and in default to undergo S.I. for a period of Crl.R.P.No. 925 of 2004 6 one month is confirmed. The learned Magistrate is directed to execute the modified sentence. (M.L. JOSEPH FRANCIS) Judge tm