IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 Crl.Rev.Pet.No.322 of 2002 ( ) -------------------------------- AGAINST THE JUDGMENT IN CRA 304/2001 of ADDL. SESSIONS COURT, ALAPPUZHA. DATED 02-01-2002 AGAINST THE JUDGMENT IN CC 521/1995 of J.M.F.C.-II, CHERTHALA DATED 08-10-2001 REVISION PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------ JAMALUDHEEN KOYA, S/O.MASTAN KUNJU, AGED 53 YEARS, PUTHIYAKKAL VEEDU, WARD NO.8 VAYALAR PANCHAYAT, VAYALAR EAST P.O., CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND THE STATE: ------------------------------------------------------------------------ 1. MADHU, S/O.SADANANDAN, AGED 32 YEARS, SHEELA BHAVAN, CSP WARD NO.III, KURUPPAMKULANGARA.P.O. CHERTHALA. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SHABU SREEDHARAN R1 BY ADV. SRI.P.A.NOOR MUHAMMED R2 BY PUBLIC PROSECUTOR SMT.KOCHUMOL KODUVALLI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- Crl. R.P.No. 322 OF 2002 -------------------------------------------- Dated this the 9th day of November, 2011 ORDER This criminal revision petition is directed against the conviction and sentence in criminal appeal No.304 of 2001 of the Additional Sessions Court, Alappuzha whereby the conviction and sentence passed in C.C.521 of 1995 of the Judicial First Class Magistrate Court-II, Cherthala was confirmed. The allegation is that the petitioner/ accused, on 29.10.1995, at about 7 P.M, came to the house of the complainant and borrowed a sum of Rs.30,000/-. In fact, the complaint was lodged by Sadanandan, the father of the first respondent. A cheque for Rs.30,000/- drawn on Alappuzha District Co-operative Bank, Cherthala dated 30.10.1995 was issued to the complainant. When that was presented for collection, it was dishonoured for insufficiency of funds. On 4.11.1995, late Sadanandan, the father of the first respondent caused a lawyer notice demanding discharge of the said liability. Despite its receipt, the appellant did not discharge the said liability. The learned Magistrate recorded the sworn statement of late Crl.R.P 322/02 2 Sadanandan and took cognizance and thereafter, issued process to the revision petitioner herein. In the meanwhile, the complainant Sadanandan died. Thereupon, C.M.P.3038 of 1996 was filed by the first respondent herein seeking permission to continue the proceedings and as per order dated 30.1.1997, he got himself impleaded and prosecuted the complaint. Ext.P1 is the death certificate. Ext.P2 is the heirship certificate revealing that the first respondent herein is the legal heir of the complainant. The petitioner herein had pleaded not guilty. 2. On behalf of the complainant, the first respondent herein was examined as PW1 and one Haridas was examined as PW2 and Exts.P1 to P8 were marked. On the side of the petitioner/accused, DWs 1 to 4 were examined and Exts.D1 and D2 series were marked. After a careful analysis of the oral and documentary evidence, the trial court convicted the revision petitioner and sentenced him to undergo simple imprisonment for 3 months and a fine of Rs.5,000/-. That was challenged by the petitioner herein before the Additional Sessions Court, Alappuzha by filing Crl.R.P 322/02 3 Crl.Appeal.No.304 of 2001. The appellate court confirmed the conviction and sentence. Hence, this Revision Petition. 3. I have already adverted to the prosecution case. Ext.P4 was the cheque said to have been issued by the appellant for discharging his liability to the tune of Rs.30,000/- which he had borrowed from the complainant on 29.10.1995. Findings on the questions as to whether Ext.P4 cheque was issued by the revision petitioner herein in discharge of the aforesaid liability and also whether the cheque was dishonoured for insufficiency of funds are concurrent. 4. I have heard the learned counsel for the petitioner, the learned counsel for the first respondent and also the learned Public Prosecutor. The findings of the court below are founded on the evidence on record. The petitioner could not bring out any perversity or illegality warranting invocation of the revisional jurisdiction of this Court. In the circumstances, I am not inclined to interfere with the said finding, on facts. Crl.R.P 322/02 4 5. Evidently, the transaction in question was effected on 29.10.1995. The petitioner has produced Ext.D2 series to contend that towards the amount borrowed from the complainant, late Sadanandan, certain amounts were repaid. As already noticed hereinbefore, the trial court convicted and sentenced the petitioner to undergo simple imprisonment for three months and to pay a fine of Rs.5,000/- and in default of payment of the said amount, to undergo simple imprisonment for a further period of one month. Further, if fine was recovered or paid that was directed to be given to PW1 as compensation. The petitioner herein is now a sexagenarian. I am of the view that, in the interest of justice, the sentence can be modified while confirming the conviction. Sentence is accordingly modified as detention in the court for one day till the rising of court. On payment of the fine amount of Rs.5,000/- the same shall be given to PW1, the first respondent herein, as compensation under section 357(1) of the Code of Criminal Procedure. To execute the sentence imposed on the petitioner, the Judicial First Class Magistrate Court- II, Crl.R.P 322/02 5 Cherthala shall take appropriate proceedings, in accordance with law. The petitioner shall effect payment of Rs.5,000/- as ordered on the appointed day for his appearance. The conviction is confirmed and the sentence is modified to the above extent. Accordingly, the criminal revision petition is dismissed with the above modification. Sd/- C.T. RAVIKUMAR (Judge) spc Crl.R.P 322/02 6 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 Crl.R.P 322/02 7