IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Crl.Rev.Pet.No. 3492 of 2009() ------------------------------ CRA.699/2008 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1497/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,CHALAKUDY .................... REVN. PETITIONER: --------------------- JAYAKUMAR, S/O. AYYAPPANPILLAI, AGED 45 YEARS,PUTHENPURAYIL VEEDU, PONEVAZHY ROAD, EDAPPALLY P.O., KOCHI-25. BY ADV. SRI.R.DIVAKARAN RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASAD, S/O. VALLOLIL THANKAMMA, AGED 35 YEARS, WEST KORATTY DESOM, KALLAR THEKUMURI VILLAGE, MUKUNDAPURAM TALUK. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3492 of 2009 ---------------------------------------- Dated this the 10th day of November, 2009 ORDER The revision petitioner is the accused in C.C.No.1497 of 2005 on the file of the Judicial Magistrate of the First Class-II, Chalakkudy. The second respondent prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act basing upon a cheque for Rs.1,75,000/- which was marked as Ext.P1. The revision petitioner pleaded not guilty to the charge. Hence he was sent for trial. The second respondent was examined as PW.1 and Exts.P1 to P6 were marked. The revision petitioner took a defence that he borrowed a sum of Rs.20,000/- from one Gopi, the brother-in-law of the second respondent and issued a blank cheque as security. On his side copy of the reply notice and acknowledgment card were marked as Exts.D1 and D2. The learned magistrate on appraisal of the evidence arrived a conclusion of guilt. During the trial, by various occasion Rs.90,000/- was paid to the second respondent. The revision petitioner was sentenced to simple imprisonment for seven months and was directed to pay Rs.85,000/- as compensation to the second respondent under Crl.R.P.No.3492 of 2009 2 Section 357(3) of the Code of Criminal Procedure with a default sentence of simple imprisonment for four months. In Criminal Appeal No.699 of 2008, the conviction was confirmed. But the substantive sentence was reduced to imprisonment till rising of the court. 2. Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision petition was filed. 3. Having heard the learned counsel for the revision petitioner and perusing the judgment of the court below, I find that the second respondent who was examined as PW.1 had succeeded to establish that the revision petitioner owed a sum of Rs.1,75,000/- to the second respondent and in discharge of the said liability, Ext.P1 cheque dated 30/6/2005 drawn on Vaisya Bank, Ravipuram Branch for the said amount was delivered to the second respondent. When Ext.P1 was sent for collection it was returned bounced for insufficiency of funds as evidenced by Ext.P2 memo and Ext.P3 intimation dated 6/7/2005. Demanding discharge of the liability, a lawyer notice dated 23/7/2005, copy of which was marked as Ext.P4 was caused. Despite the Crl.R.P.No.3492 of 2009 3 acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. The revision petitioner did not care to adduce any evidence to establish that Ext.P1 cheque was issued in any other manner than that was deposed by PW.1. When questioned under Section 313 of the Code of the Criminal Procedure, it was stated that the cheque was issued to one Gopi. But, no supporting evidence was let in. It is also pertinent to note that the revision petitioner had paid Rs.90,000/- by various occasions during the pendancy of the trial. That fact itself is an admission of the liability more than that was stated by the revision petitioner. Since there is no contra evidence, the evidence of PW.1 remains uncontroverted. There is nothing to show that the liability is anything lesser than what is shown in Ext.P1. The court below had concurrently believed the evidence of PW.1 and arrived a conclusion of guilt. The evidence of PW.1 regarding the liability and delivery of cheque is supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The revision petitioner could not rebut the presumption. I find no error, illegality or impropriety committed by the courts below in appraising the evidence of PW.1. The conviction under Crl.R.P.No.3492 of 2009 4 challenge is based on cogent evidence. 4. The appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court. It is very lenient. It is taking into account of the payment made by the revision petitioner during the pendancy of the proceedings before the trial court. The compensation amount was determined to Rs.85,000/- after taking note of the partial discharge. That is also quite appropriate. The revision petition is devoid of any merit. In the result the revision petition is dismissed. The revision petitioner is granted six months time for payment of the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.