IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1550 of 2006() ------------------------------------------- CRA.92/2005 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.409/2003 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------- N.V. MUKUNDAN, MANNASSERIL HOUSE, THOTTUVATHALA, KAINAKARY. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------- 1. IYPE VARGHESE, S/O. IYPE, ANGEL GUARD, THOTTUVATHALA P.O., KAINAKARY, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PEEYUS A.KOTTAM FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== Crl.R.P. No.1550 OF 2006 ===================== Dated this the 15th day of December 2008 O R D E R This revision petition is preferred against the judgment of the Addl.Sessions Court(Fast Track Court-II), Alappuzha in Crl.A.No.92 of 2005. The said appeal was preferred against the conviction and sentence passed by the Judl.I Class Magistrate Court, Ramankary in CC No.409 of 2003. The accused was found guilty under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.1,58,000/- and in default to undergo simple imprisonment for a further period of 3 months. The appeal against that conviction and sentence was dismissed by the appellate court. It is against that decision, the present revision is filed. 2. Heard the counsel for the revision petitioner as well as for the counsel for the complainant. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.1,52,000/- and towards the discharge of liability he had issued a cheque which when presented for encashment returned with the endorsement 'insufficiency of funds'. A notice CRRP 1550/2006 -:2:- was tendered in the correct address, which was returned as unclaimed and as there was no payment prosecution was launched under Section 138 of the Negotiable Instruments Act. The contention of the revision petitioner appears to be that he had pledged some ornaments with the complainant and at the time of the said pledging towards additional security has issued a blank signed cheque which had been used by the complainant to file the case. In the trial court PW1 and Dws 1 and 2 were examined. Exts.P1 to P6 and D1 were marked. The courts below appreciated the evidence of PW1 and Dws 1 and 2. The court were satisfied that Ext.P1 cheque was issued and executed by the revision petitioner towards the discharge of liability and therefore it held that presumption is liable to be drawn under Sections 118 and 139 of the NI Act. The courts below analyzed the evidence of Dws 1 and 2 and found that DW2 is a close associate of DW1 and Ext.D1 is only a passbook relating to the issuance of a cheque and was not prepared to accept the evidence that a blank signed cheque was given as an additional security. I also feel that the courts below had not committed any illegality, irregularity in arriving at a decision regarding execution of Ext.P1 cheque and that it has been issued towards the discharge of liability. 3.So far as notice is concerned, it was returned as unclaimed and the CRRP 1550/2006 -:3:- explanation tendered by the revision petitioner is that he was outside and his family members were not intimated. It is an official course of business which warrants a presumption under Section 114 of the Evidence Act. Further, it has to be stated that when a notice is tendered in a proper address, there is a presumption also. That point also cannot be answered in favour of the petitioner. So, from these discussions, I hold that the conviction under Section 138 does not call for any interference. 4.So far as sentence is concerned, he has been sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.1,58,000/- and in default to undergo SI for 3 months. If the petitioner really wants to wipe off the liability and as he has deposited about Rs.50,000/- at the time of admission, I feel some leniency can be shown. I feel justice can be met by directing the revision petitioner to undergo simple imprisonment till the raising of the court and to pay a fine of Rs.1,58,000/- which on realisation shall be disbursed to the complainant. 5. In the result, the revision petition is disposed of as follows:(1) The conviction under Section 138 is sustained. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment till the raising of the court and to pay a fine of Rs.1,58,000/- which on realisation shall be disbursed to the complainant and in default, the petitioner shall CRRP 1550/2006 -:4:- undergo simple imprisonment for two months. (3) The revision petitioner shall present himself before the trial court for receiving sentence and for making payment of fine on 16.3.2009.(4) In case of failure to be present, the trial court shall execute the sentence. (5) The amount deposited shall be treated as a part of fine and only the balance need be deposited. (6)The amount so deposited shall be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-