IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3847 of 2009 ---------------------------------------- CRL.A.NO.826/2007 OF II ADDL. SESSIONS COURT, TRIVANDRUM, CC.NO.13/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, NEYYATTINKARA. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SELVARAJ, S/O. ANTONY NADAR, ROSE VILASOM BUNGALOW, CHEMMANNUVILA, AIRA P.O. PARASSALA, THIRUVANANTHAPURAM. BY ADV. MR.GRASHIOUS KURIAKOSE. RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SABU JOHN, S/O. JOHN, S.K.BHAVAN, PONVILA, AIR.P.O. PARASSALA, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR MR. RITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.Gopinathan, J. ========================================== Crl.R.P.3847 of 2009 ========================================== Dated this the 10th day of December, 2009. ORDER 1.The Judicial Magistrate of the First Class-V, Neyyattinkara in C.C.No.13 of 2007 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for one month and to pay Rs.22,000/- as compensation to the second respondent under Section 357(3) of the Code of Criminal Procedure. In Crl.A.826 of 2007, the IInd Addl.Sessions Judge, Thiruvananthapuram, while confirming the conviction reduced the substantive sentence to imprisonment till rising of the court. The compensation amount was raised to Rs.25,000/-. Now this revision. 2.Having heard the learned counsel for the revision petitioner and perusing the judgments of the CRRP3847/09 -:2:- courts below, I find that the second respondent, who was examined as P.W.1, had succeeded to establish that the revision petitioner borrowed a sum of Rs.20,000/- from the second respondent and in discharge of the said liability, Ext.P1 cheque dated 2.3.2006 for the said amount drawn on Neyyattinkara District Co-operative Bank was issued and that when it was sent for collection through Thiruvananthapuram District Co-operative Bank, Parassala branch, it was returned bounced for insufficiency of funds as evidenced by Ext.P2 memo and that demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P3 dated 8.6.2006 was caused. Though notice was duly stamped and correctly addressed, it was returned unclaimed. Neither there is any discharge of the liability. The revision petitioner had took up a contention that he is the brother of the second respondent's mother's sister's husband and about four years' back he and his brother had given a blank CRRP3847/09 -:3:- unsigned cheque to his brother and misusing that cheque, the prosecution was launched. However, he did not care to adduce any evidence in support of such plea. The result is that the evidence of P.W.1 supported by Ext.P1 and presumptions under Sections 118 and 139 of the Negotiable Instruments Act remains uncontroverted. There is no reason to disbelieve P.W.1. Notice was duly stamped and correctly addressed. Since the revision petitioner has no case that notice was returned without serving at the instance of the second respondent, it had to be presumed that the revision petitioner returned the notice knowing its contents and therefore there is constructive notice. The second respondent had complied with all the mandatory procedures before launching prosecution. There is no reason to interfere with the concurrent findings of the courts below. I find that the conviction under challenge is based upon cogent evidence. CRRP3847/09 -:4:- 3.As regards the sentence, the appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court. At the same time, without assigning any reason, the compensation was enhanced from Rs.22,000/- to Rs.25,000/-. I find that the enhancement of compensation is not at all warranted. To that extent, a modification to the sentence is required. In the result, this revision petition is allowed in part. While confirming the conviction and substantive sentence, the amount of compensation is reduced to Rs.22,000/-, as ordered by the trial court. The revision petitioner is granted five months' time to pay the compensation. Till then, the bail bond executed by him shall remain in force. sl. P.S.Gopinathan, Judge.