IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 226 of 2004(C) -------------------------------------------- CRA.342/2002 of SESSIONS COURT, KOTTAYAM CC.24/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VAIKOM .................... PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------- R. JAYACHANDRAN, S/O. RAJAGOPALAN NAIR, RAJAMANDIRATHIL, PADINJATTUMCHERI KARA, PADINJATTUMCHERI, NADUVILE VILLAGE, VAIKOM TALUK. BY ADV. SRI.N.NAGARESH RESPONDENTS/RESPONDENTS/COMPLAINTS -------------------------------------------------------------------- 1. KUNJAMMA, THARAYIL VEEDU, KIZHAKKUMCHERI, VADAKKEMURI, NADUVILE VILLAGE, VAIKOM TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN. R1 BY ADV. SRI.P.S.USUPH, SRI.P.U.ZIYAD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.226 of 2004. = = = = = = = = = = = = Dated this the 24th day of September, 2010. O R D E R The Judicial Magistrate of the First Class, Vaikom in CC.No.24/1998 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for one year. Feeling aggrieved, he preferred Crl.Appeal No.342/2002 before the District Judge, Kottayam. The learned District Judge by the impugned Judgment dated 10.11.2003 while confirming the conviction, reduced the sentence to simple imprisonment for 15 days with order to pay Rs.10,000/- as compensation to the first respondent/defacto complainant. Assailing the above conviction and sentence as modified in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and the first respondent, I find that the first Crl.RP.No.226/2004. -: 2 :- respondent who was examined as Pw1 had succeeded to establish that in discharge of an existing liability of Rs.10,000/-, Ext.P1 cheque dated 5.6.1997 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficient funds as evidenced by Exts.P2 and P3 memos and despite the acknowledgment of notice demanding discharge, the liability was not discharged. The revision petitioner has taken a defence of total denial. He has no good explanation as regards the issuance of cheque. Despite acknowledgment of the notice demanding discharge of the liability he remained silent. The silence of the revision petitioner after acknowledging notice looms large and I am persuaded to arrive at an inference that the revision petitioner has no good defence at all. The existence of the liability, issuance of the cheque, dishonour of cheque for want of sufficient funds, notice demanding discharge of liability and failure to discharge the liability proved by the testimony of Pw1 coupled with Exts.P1 to P6 remains uncontroverted. The presumptions under Sec.118 Crl.RP.No.226/2004. -: 3 :- and 139 of the Negotiable Instruments Act supporting the evidence of Pw1 remains unrebutted. I find no reason to interfere with the findings of the courts below. 3. Having taken into account that the revision petitioner is a business man and that financial difficulties led him to face the prosecution, I find that he is entitled to some leniency in sentence and that a sentence of imprisonment till the rising of the court and a fine of Rs.12,000/- would meet the ends of justice. 4. In the result, the revision petition is allowed in part. While confirming the conviction, the substantial sentence is reduced to imprisonment till the rising of the court and a fine of Rs.12,000/- (Rupees twelve thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for one month. Out of the fine amount, if realised, Rs.11,000/- (Rupees eleven thousand only) shall be paid to the first respondent as compensation under Sec.357(1) of the Crl.P.C. The revision petitioner is granted one month's time to remit the fine. Crl.RP.No.226/2004. -: 4 :- Till then, the bail bond executed by him shall remain in force. In the event there is already any deposit, that shall be given credit to. P.S.GOPINATHAN, JUDGE. Kvs/-