IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 1321 of 2006() ------------------------------ CRA.281/2004 of SESSIONS COURT, KALPETTA STC.9/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVISION PETITIONER: APPELLANT/ACCUSED: ----------------------------------------------------------------------- KUNNATH USMAN, AGED 42, S/O. IBRAI, KUNNATH HOUSE, PUTHUSSERY KADAVU, KUPADITHARA. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: RESPONDENTS:COMPLAINANT AND STATE: -------------------------------------------------------------------------------------------- 1. SHEIKH ABDULLAHKUTTY, S/O. KUNJAHAMMED, MUNDAKUZY POST, KUPADITHARA AMSOM, VYTHIRI TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.M.SREEDHARAN FOR R1 SRI.A.DINESH RAO FOR R1 SMT.C.K.SHERIN FOR R1 SRI.V.P.NARAYANAN FOR R1 BY PUBLIC PROSECUTOR SRI. THOMAS AMBOOKEN – R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J -------------------------- CRL.R.P. No.1321 OF 2006 -------------------------------------- Dated this the 13th day of October, 2008 O R D E R This Revision is preferred against the judgment of the Sessions Judge, Wayanad in Crl. Appeal No. 281/04. The said appeal was preferred against the conviction and sentence passed by the Judicial First Class Magistrate Court, Mananthavady in S.T.C.No. 9/04. The Trial Court convicted the accused and sentenced him to undergo Simple Imprisonment till the rising of the court and to pay a compensation of Rs. 2,50,000/- under Section 357(3) of the Criminal Procedure Code and in default of payment, he has to undergo Simple Imprisonment for two months. It was against that decision the appeal was preferred which ended in dismissal. The present revision is preferred against the said judgment. The case of the complainant is that the accused had borrowed a sum of Rs. 2,50,000/- and in discharge of the liability, had issued a cheque which when presented for encashment returned for insufficiency of funds and thereafter even on statutory notice the amount has not been paid. The Trial Court examined the complainant as PW1 and DWs. 1 and CRL.R.P. No.1321 OF 2006 -2- 2 were examined and Ext. P1 to P5 and D1 to D3 were marked. On analysis of the materials, the Trial Court found that the execution of the cheque has been proved. The liability is thus established. When cheque was presented for encashment it has been returned for insufficiency of funds. The appellate court also confirmed the said finding. So both the courts below on appreciation of the entire documentary and oral evidence available before it came to the conclusion regarding the execution of the cheque payment of consideration and also the dishonour of cheque. The learned counsel for the Revision Petitioner strongly argued before me that the evidence is not sufficient to prove the execution of the cheque and the complainant has not discharge the burden which is required in a criminal case. He had also drawn my attention to para 11 of the Trial Court judgment wherein Trial Court has observed that the evidence of DW2 gives a suspicion that he is not deposing the whole truth . PW1 is the complainant. He had deposed before the court about the entire transaction with the documentary evidence of Ext. P1 to P5. The accused has admitted the execution of the signature in Ext. P1 cheque. His defence is that he had given his signature in some other transaction in connection with another transaction. But the CRL.R.P. No.1321 OF 2006 -3- courts below did not accept that version or explanation and found that Ext. P1 cheque has been issued by the accused in discharge of the liability towards the complainant. I do not find any illegality, irregularity or impropriety in the approach made by the court below in arriving at such a decision and therefore the conviction passed by the court below does not call for any interference. So far as the sentence of the accused is concerned, I feel that it can be modified by converting the payment of compensation under Section 357(3) into that of fine under Section 357(1). So the Revision Petition is disposed of and the Revision Petitioner is convicted and sentenced to undergo Simple Imprisonment till the rising of the court and to pay a fine of Rs. 2,50,000/- which on realisation be given to the complainant. The Revision Petitioner shall appear before the Trial Court to undergo the sentence and for payment of fine on 15.01.2009. In case of non payment of fine the Revision Petitioner shall undergo Simple Imprisonment for a period of two months. M.N. KRISHNAN, JUDGE vkm