IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3927 of 2009() ------------------------------ CRA.217/2008 of ADDL.SESSIONS COURT, KOTTAYAM ST.2417/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- VARGHESE P.V., PUTHENPURACKAL HOUSE, P.O.KUDAMALOOR, KOTTAYAM. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. THOMAS GEORGE, NADUTHALA, THELLAKOM P.O. KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK SRI.B.PREMOD FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3927 of 2009 ---------------------------------------- Dated this the 18th day of December, 2009 ORDER The revision petitioner was convicted by the Judicial Magistrate of the First Class-II(Mobile), Kottayam in S.T.No.2417 of 2007 for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for one month and fine of Rs.10,000/- with a default sentence of simple imprisonment for one month. In Criminal Appeal No.217 of 2008, the Additional Sessions Judge, Kottayam, while confirming the conviction, reduced the sentence to imprisonment till rising of the court and fine of Rs.80,000/- with a default sentence of one month. Fine, if realised, was ordered to be paid to the first respondent as compensation. Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the first respondent who was examined as PW.1 had succeeded to establish that the revision petitioner borrowed a sum of Rs.80,000/- on 25/2/2005 and in discharge of the said Crl.R.P.No.3927 of 2009 2 liability, Ext.P1 cheque dated 25/2/2005 was issued and that when sent for collection, Ext.P1 was returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memo and intimation dated 11/3/2005 and 18/3/2005 respectively and that demanding discharge of the liability, a lawyer notice dated 28/3/2005, copy of which was marked as Ext.P4, was caused and that despite the acknowledgment of the same as evidenced by Ext.P6 series, the liability was not discharged. The revision petitioner, who was an employee in a bank had taken up a defence that he borrowed only Rs.10,000/- and Ext.P1 cheque was issued blank as a security. The statement made by him when questioned under Section 313 of the Code of Criminal Procedure remains to be a suggestion. He did not care to adduce any evidence to support the defence suggestion or to establish that Ext.P1 cheque was obtained to the first respondent in any manner other than what was deposed by PW.1. Though PW.1 was subjected to searching cross-examination, no material was brought out to discredit his evidence. His evidence is supported by the presumptions under Sections 118 and 139 of Crl.R.P.No.3927 of 2009 3 the Negotiable Instruments Act. The defence suggestion that Ext.P1 was issued blank as a security while borrowing Rs.10,000/- is not at all sufficient to rebut the presumptions in favour of the first respondent or to disbelieve the testimony of PW.1. I find that the courts below had correctly appreciated the evidence and concurrently arrived at a conclusion of guilt. There is no reason to interfere with the conviction under challenge. 3. Relying upon a decision reported in Sahab Singh and others Vs. State of Hariyana (1990(2)SCC 385) and (AIR 1990 SC 1188) the learned counsel for the revision petitioner submitted that in appeal against conviction, the fine was enhanced by the appellate court from Rs.10,000/- to Rs.80,000/- and it is not appropriate or sustainable. But it is pertinent to note that the appellate court had reduced the substantive sentence of simple imprisonment for one month to imprisonment till rising of the court. While doing so, the fine was enhanced. The sentence awarded by the trial court was not enhanced. But, there is reduction in the sentence. In fact the appellate court was very lenient in awarding sentence. The default sentence Crl.R.P.No.3927 of 2009 4 awarded by the trial court is also disproportionate towards leniency. If it all erred in sentence, it is only towards leniency. I find no reason to interfere with the sentence also. In the result, this revision petition is dismissed as devoid of merit. The revision petitioner is granted three months time to remit the fine. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.