IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.Rev.Pet.No. 3577 of 2009() ------------------------------ CRA.13/2006 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.32/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- A.V.KRISHNAN, S/O.KOMAN, EROLE HOUSE, EDATHODE, PARAPPA VILLAGE, HOSDURG TALUK, KASARAGOD. BY ADV. SRI.SUBHASH CYRIAC RESPONDENTS: RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, RAM MOHAN PALACE COMPOUND, ERNAKULAM. 2. M/S.HOSDURG SELF EMPLOYEES FINANCING COMPANY, HOSDURG REPRESENTED BY ITS MANAGING PARTNER, A.V.RAGHAVAN, S/O.RAMAN, RESIDING AT KARAKODE, THALANGARA VILLAGE, KASARGOD PO PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3577 of 2009 ---------------------------------------- Dated this the 17th day of November, 2009 ORDER The revision petitioner owed a sum of Rs.1,01,913/- to the second respondent. In discharge of the said liability, a cheque dated 17/6/2002 was issued. When sent for collection it was returned dishonoured for insufficiency of funds. To a lawyer notice demanding discharge of the liability the revision petitioner replied stating that he owed only a lesser amount and that a portion of the same was discharged. No payment was made. With this pleading the second respondent prosecuted the revision petitioner before the Judicial Magistrate of the First Class-I, Hosdurg in C.C.No.32 of 2003 on its file. The revision petitioner pleaded not guilty. 2. On the side of the second respondent, the Managing Partner was examined as PW.1 and Exts.P1 to P7 were marked. The revision petitioner when questioned under Section 313 of the Code of Criminal Procedure stated that only a sum of Rs.60,000/- was borrowed. Out of that Rs.39,500/- was paid and a sum of Rs.20,500/- remains to be discharged. It was further stated that at the time of availing loan, a blank cheque was issued along with blank signed stamp paper and title deeds Crl.R.P.No.3577 of 2006 2 belonging to the revision petitioner. However no defence evidence was let in. 3. The trial court on appraisal of the evidence arrived a conclusion of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for four months and ordered to pay Rs.1,01,913/- to the second respondent as compensation under Section 357(3) of the Code of Criminal Procedure. In Criminal Appeal No.13 of 2006, the Additional Sessions Judge (Adhoc-I), Kazaragod confirmed the conviction. The substantive sentence was reduced to simple imprisonment for one month. Order to pay compensation was sustained. 4. Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision petition was filed. 5. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the second respondent had succeeded to establish that the revision petitioner owed a sum of Rs.1,01,913/- to the second respondent. In discharge of the said liability Ext.P3 cheque dated 17/6/2002 drawn on State Bank of India, Kanhangad Branch was Crl.R.P.No.3577 of 2006 3 issued and that when Ext.P3 cheque was sent for collection, it was returned dishonoured for insufficiency of funds as evidenced by Ext.P4 memo dated 3/7/2002. Demanding discharge of the liability a lawyer notice dated 8/7/2002, copy of which was marked as Ext.P5 was caused. Despite the acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. But caused Ext.P7 reply. Though the revision petitioner took up a defence that only Rs.60,000/- was borrowed, out of which Rs.39,500/- was discharged, there is no supporting evidence. Defence version remains to be a suggestion. Such being the materials on record, the evidence of PW.1 remains uncontroverted. There is nothing to conclude that the defence theory is probable. The courts below had rightly analysed the evidence and concurrently found against the revision petitioner. I find no reason to interfere with the concurrent finding of the conviction. 6. Regarding the sentence, according to the learned counsel, because of the failure in business, he could not discharge the liability and in the above circumstance, he deserves leniency in sentence. I find some merit in the Crl.R.P.No.3577 of 2006 4 submission and that sentence of imprisonment till rising of the court with order to pay compensation as ordered by the trial court and confirmed in appeal with a default sentence of simple imprisonment for four months would meet the ends of justice. 7. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court with order to pay Rs.1,01,913/- to the second respondent as compensation under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation the revision petitioner shall undergo simple imprisonment for four months. The revision petitioner is granted six months time to remit the compensation amount. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.