IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.Rev.Pet.No. 3033 of 2009 ---------------------------------------- [CRL.A.NO.242/2007 OF ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD, CC.NO.NO.949/2005 OF JUDL.MAGISTRATE OF FIRST CLASS COURT -I, HOSDRUG] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- M.MANOJ KUMAR, AGED 37 YEARS, S/O.KUNHI KANNAN, C/O.SAGAR SHOES, RAM NAGAR ROAD,KOTTACHERY, KANHANGAD, KASARGOD DISTRICT. BY ADV. MR.T.MADHU. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.RAJENDRAN, AGED 49 YEARS, S/O.LATE P.NARAYANAN NAIR, R.P.NIVAS, KUSHAVANKUNNU, AJANUR VILLAGE, P.O.AJANUR, HOSDURG TALUK, KASARAGOD DISTRICT. R1 BY PUBLIC PROSECUTOR MR. RITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = Crl.R.P.No.3033 of 2009. = = = == = = = = = = = = = = = = = = Dated this the 30th day of September, 2009. O R D E R The revision petitioner is the accused in CC.No.949/2005 on the file of the Judicial Magistrate of the First Class-I, Hosdurg. The second respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after due trial, arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for four months. He was further directed to pay Rs.1,01,000/- as compensation, to the second respondent under Section 357(3) of the Criminal Procedure Code. In appeal, the Addl.Sessions Judge, (Adhoc-I), Kasaragod confirmed the conviction. Substantive sentence was reduced to imprisonment for two months. Direction to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction Crl.R.P.No.3033 of 2009. -: 2 :- and sentence as modified in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments impugned, I find that the second respondent, who was examined as Pw1, supported by Exts.P1 to P4, had succeeded to establish that the revision petitioner owed a sum of Rs.1,01,000/- to the second respondent and in discharge of that liability Ext.P1 cheque dated 24.6.2005 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Ext.P2 memo. Though a lawyer notice, copy of which was marked as Ext.P3, was caused demanding discharge of the liability, the notice was returned by the revision petitioner as unclaimed. Neither the liability was discharged. There is no contra evidence. The evidence of Pw1 was also supported by legal presumptions under Sec.118 and 138 of the Negotiable Instruments Act. The revision petitioner has got no good Crl.R.P.No.3033 of 2009. -: 3 :- defence. No rebuttal evidence was adduced. Such being the materials on record, I find that the courts below had correctly appreciated the evidence and arrived a finding of guilty. The conviction under challenge is unassailable. 3. According to the learned counsel, the financial difficulties led the revision petitioner to face the prosecution and he would clear the liabilities within six months. Taking note of the above circumstance, the revision petitioner is entitled to leniency in sentence and that a sentence of imprisonment till rising of the court and a fine of Rs.1,01,000/- would meet the ends of justice. 4. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court and a fine of Rs.1,01,000/- with a default sentence of simple imprisonment for six months. Fine, if realised shall be paid to the second respondent as compensation under Sec.357(1) of the Code of Criminal Procedure. The revision petitioner Crl.R.P.No.3033 of 2009. -: 4 :- is granted six months' time for payment of compensation, provided, he executes a bail bond for Rs.15,000/- (Rupees fifteen thousand only) with two solvent sureties each for like sum to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE. Kvs/-