IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3831 of 2009(J) ------------------------------- CRA.33/2007 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM ST.57/2005 of .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------------------------------------------ VIJAYARAJ, YEHOVAH BHAVAN, NADUKKADU, NARUVAMMOOD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT ----------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VIJAYAKUMAR.G., VIJAYA BHAVAN, SWATHY LANE, HOUSE NO.30, VISWAMBHARAN ROAD, PAPPANAMCODE, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI.SABU S.KALLARAMOOLA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.3831 of 2009. = = = = = = = = = = = = = Dated this the 17th day of December, 2009. O R D E R The Judicial Magistrate of the First Class-VI, Thiruvananthapuram in ST.No.57/2005 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for six months and to pay Rs.75,000/- as compensation to the second respondent under Section 357 (3) of the Code of Criminal Procedure. In Crl.Appeal No.33/2007, the Addl.Sessions Judge, Adhoc-II, Thiruvananthapuram while confirming the conviction, reduced the substantive sentence to imprisonment till rising of the court. The order to pay compensation with default sentence was sustained. Assailing the legality, correctness, and propriety of 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 perusing the judgments of the courts below, I Crl.R.P.No.3831 of 2009. -: 2 :- find that the second respondent who was the complainant before the lower court had succeeded to establish by his evidence as Pw1 that the revision petitioner borrowed a sum of Rs.75,000/- from the second respondent and in discharge of the liability three cheques each for Rs.25,000/-, two dated 5.12.1999 and one dated 10.12.1999 which were marked as Exts.P1, P4 and P7 respectively were issued and that when sent for collection, the cheques were returned bounced for insufficient funds as evidenced by Ext.P2, P3, P5, P6 and P9 memos and intimation from the bank. Demanding discharge of the liability a lawyer notice, copy of which was marked as Ext.P12 was issued. Despite by acknowledgment of the notice as evidenced by Ext.P11 the liability was not discharged, but Ext.P10 reply was caused. In Ext.P10 reply, it was alleged that the revision petitioner had been conducting a kuri and that the second respondent was a subscriber and as security ensuring repayment of the kuri amount, two filled up cheques and one blank cheque were issued and that the liability was discharged. When questioned under Sec.313 of the Code of Criminal Crl.R.P.No.3831 of 2009. -: 3 :- Procedure the revision petitioner took up a defence that his brother had been conducting a chitty and that the cheques were given in favour of his brother. Having found that the revision petitioner had no consistent defence the courts below disbelieved the defence theory. The evidence of Pw1 is supported by the presumptions under Section 118 and 139 of the Negotiable Instruments Act. The defence theory neither rebuts the legal presumptions nor reveals any probability of the defence. The learned counsel for the revision petitioner would submit that the prosecution is bad for non mentioning about the date of the borrowal and the date the delivery of cheques. It is pertinent to note that the revision petitioner had not disputed the signature in Exts.P1, P4 and P7. If the cheques were issued as security regarding the due performance of the kuri, in the normal course there would have been records and accounts with the revision petitioner regarding the receipt of amount, payment of the amount, etc. But none of these documents were produced. In the above circumstance, even though the second respondent had not mentioned about the date of Crl.R.P.No.3831 of 2009. -: 4 :- borrowal or the date of delivery of the cheques, such omissions are of little consequence and not at all sufficient to arrive at a finding in favour of the revision petitioner. The courts below had correctly appreciated the evidence and arrived a conclusion of guilty. I find no reason to interfere with the finding of guilty. 3. The appellate court was very lenient in reducing the sentence to imprisonment till rising of the court. The order to pay compensation is quite appropriate. No reason to interfere with the sentence also. In the result, this revision petition is devoid of merits and it is dismissed. The revision petitioner is granted six months time to remit the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE. Kvs/-