IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 Crl.Rev.Pet.No. 407 of 2011() ----------------------------------------- CRA.475/2010 OF ADDITIONAL DISTRICT & SESSIONS JUDGE MUVATTUPUZHA ST.3462/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------- P.K.SOMAN, AGED 56 YEARS, S/O. KUTTAPPAN, PANNAPPURATHU VEEDU, EDAYAR KARA, KOOTHATTUKULAM VILLAGE. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------------------------------------ 1. V.T.ANILKUMAR, S/O. THANKAPPAN, VETTUKALLUMKUZHIYIL VEEDU, KOOTHATTUKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K. MOHANAN, J. ------------------------------------------------- Crl.R.P.No. 407 of 2011 ------------------------------------------------- Dated this the 08th day of February, 2011 O R D E R The challenge is against the conviction and sentence imposed against the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881(for short N.I.Act). 2. I have heard Sri. George Sebastian learned counsel appearing for the revision petitioner and also perused the judgments of the court below. 3. Learned counsel for the revision petitioner vehemently submitted that the trial court as well as the appellate court failed to appreciate the defence case. According to the learned counsel the defence succeeded in rebutting the presumption by producing Exhibit D1 document and also examining the accused himself as DW1. Learned counsel also pointed out that the complaint has miserably failed to establish the execution and issuance of the cheque. Learned counsel submitted that actually the cheque in question was given in blank form to the employer Crl.R.P.No. 407 of 2011 2 of the complainant when the revision petitioner purchased gold ornaments for a sum of Rs.10,000/-. According to the learned counsel, the petitioner was not having sufficient money to pay the value of the gold ornaments and after giving Rs.5,000/-, a blank cheque was given to the owner of the jewelery. Therefore defence contention on the basis of Ext.D2 that the cheque in question was given to the employer of the complainant fails. 4. I am unable to sustain the above contention in the light of the findings entered into by the court below. PW1, in terms of the allegation in the complaint, had produced Exhibit P1 cheque from his possession and the cheque in question is bearing the signature of the revision petitioner and the same is belonging to the account maintained by the revision petitioner. The evidence adduced by the complainant by way of oral deposition as PW1 and the documentary evidence remain in fact whereas the evidence of the defence is not sufficient to show as to who issued Exhibit D2 and whether the same was issued in favour of the revision petitioner etc. According to the petitioner and his Crl.R.P.No. 407 of 2011 3 counsel it is the above cheque misused by the complainant and he is only the stooge of his employer. Therefore, I find no reason to interfere with the order of conviction recorded by the courts below. 5. As this Court is not inclined to interfere with the conviction, the learned counsel for the petitioner submitted that the sentence imposed by the court below is wholly unreasonable and exorbitant and therefore a lenient view is taken in the matter of sentence and a breathing time may be granted to the revision petitioner. In the light of the facts and circumstances involved in the case I am of the view that the said submission can be considered positively and the sentence of imprisonment ordered by the court below require reconsideration. In the result this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the lower court is reduced into one day imprisonment that till the rising of the court. While confirming the direction to pay compensation amount, the Crl.R.P.No. 407 of 2011 4 revision petitioner is granted one month time to pay the compensation fixed by the court below. It is made clear that the default sentence fixed by the court below will be attracted only in case of failure on the part of the revision petitioner in paying the compensation amount within one month from today. Accordingly, the revision petitioner is directed to appear before the trial court on 09.03.2011 to receive the modified sentence and to pay the compensation amount. If there is any failure on the part of the revision petitioner in paying the compensation amount and to appear before the court below to receive the sentence, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 09.03.2011. V.K. MOHANAN, JUDGE. rkc