IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1162 of 2006() ------------------------------------------ CRA.402/2002 of ADDL. SESSIONS COURT, (FAST TRACK-I), PALAKKAD CC.273/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- SMT.DAISY PIOUS JOSEPH, W/O. PIOUS JOSEPH, 562/A KUZHITHOTTIL HOUSE, KONGAD POST, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. U. SALEEM, S/O. USSAN RAWTHER, RESIDING AT THEKKUMURI, CHANDRANAGAR POST, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SRI.JACOB SEBASTIAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 1162 OF 2006 = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Fast Track Court-I, Palakkad in Crl.A.402/02. That appeal was preferred against the conviction and sentence passed in C.C.273/01 by the Judicial First Class Magistrate-I, Palakkad. The trial court convicted the revision petitioner to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.1,75,000/- u/s 357 Cr.P.C. and in default to undergo simple imprisonment for one month. This was confirmed in appeal by the appellate court. It is against that decision the present revision is preferred. 2. Heard counsel for the revision petitioner as well as complainant. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.1,75,000/- and towards discharge of the same had issued a cheque dated 7.2.00 which when presented for encashment returned with CR.R.P. NO. 1162 OF 2006 -:2:- endorsement insufficiency of funds. After the statutory notice and non-payment, prosecution was launched u/s 138 of the N.I. Act. The contention of the revision petitioner appears to be that there was some transaction with the brother of the complainant namely Sankaranarayanan and a blank signed cheque was given to him which had been misused by the present complainant for launching the prosecution. 3. In the trial court PW1 was examined and Exts.P1 to P4 and X1 were marked. The trial court as well as the appellate court appreciated and re-appreciated the evidence of PW1 and was convinced that the accused had executed the cheque towards the discharge of the liability and he has not repaid the amount. When such an execution was proved the Court below drew a presumption u/Ss. 118 and 139 of the N.I. Act. and held that there is no rebuttal evidence to discard the presumption as well as the evidence adduced on the side of the complainant. I do not find any illegality, CR.R.P. NO. 1162 OF 2006 -:3:- irregularity or perversity committed by the Courts below in arriving at that decision. Therefore I sustain the conviction u/s 138. 4. So far as the sentence is concerned during the pendency of the revision an amount of Rs.50,000/- has been deposited and it has been disbursed to the complainant. I feel leniency can be shown and the compensation can be converted into one that of fine with a default sentence and the amount or Rs.50,000/- which is already deposited and withdrawn can be treated as part of fine. Therefore I pass an order only for the balance amount. In the result the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment till the raising of the Court and to pay a further fine of CR.R.P. NO. 1162 OF 2006 -:4:- Rs.1,25,000/- which on realisation be paid to the complainant in the case and in case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of one month. (4) The revision petitioner shall appear before the trial court to receive the sentence and also for payment of fine on 10.3.2009 failing which the trial court is directed to execute the sentence. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-