IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.Rev.Pet.No. 1539 of 2009() ----------------------------------------- CRA.298/2007 of SESSIONS COURT, THODUPUZHA ST.182/2006 of CHIEF JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA . .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOSE @ JOSEPH CHACKO, AGED 69 YEARS, S/O. CHACKO, KUZHIKKATTUKUNNEL (VAYATTATTIL) HOUSE,PURAPPUZHA P.O. THODUPUZHA TALUK, NOW RESIDING AT C/O.GEETHA, W/O.TOMY, PALAKKATTUKUNNEL HOUSE, MAMMODU P.O. CHANGANASSERRY. BY ADVS. MR.K.S.HARIHARAPUTHRAN MR.GEORGE MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ----------------------------- 1. V.M. JOSEPH,S/O. MATHEW, VADAKKEPARAMBIL HOUSE, NEAR NEW MAN COLLEGE, THODUPUZHA EAST P.O. 2. STATE OOF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.RENJITH B.MARAR MR.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL R2 BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.1539 of 2009. = = = = = = = = = = = = Dated this the 17th day of March, 2010. O R D E R The Judicial Magistrate of the First Class, Thodupuzha in ST.No.182/2006 on his file, 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.five lakhs as compensation to the first respondent, who prosecuted the revision petitioner before the trial court. In Crl.Appeal No.298/2007, the Sessions Judge, Thodupuzha confirmed the conviction and sentence. Now this revision petition. 2. The case of the first respondent is that on 28.1.2006, the revision petitioner borrowed a sum of Rs.4,80,000/-. In discharge of that liability Ext.P1 cheque Crl.R.P.No.1539 of 2009. -: 2 :- dated 16.6.2006 drawn on State Bank of India, Changanassery Branch was issued and that when Ext.P1 was sent for collection it was returned dishonoured for insufficient funds and that despite the notice demanding discharge, the liability was not discharged. 3. The revision petitioner, in response to the process issued by the trial court entered appearance. When the particulars of the offence was read over and explained, he pleaded not guilty. Hence he was sent for trial. The first respondent was examined as Pw1 and Exts.P1 to P7 were marked. During the course of cross examination Exts.D1 and D2 were marked. When questioned under Sec.313 of the Code of Criminal Procedure, the revision petitioner took up a defence that there was no borrowal as alleged. But, there was some property transactions between the revision petitioner and the first respondent and that in discharge of Crl.R.P.No.1539 of 2009. -: 3 :- a liability created by investment over a cinema theatre, Ext.P1 cheque was issued with an undertaking that the cheque could be encashed as and when the sale process of the cinema theatre was over. On his side the intended purchaser was examined as Dw1 and Ext.D3 agreement in respect of the theatre was marked. The trial court on appraisal of the evidence arrived a finding in favour of the first respondent, consequent to which the revision petitioner was convicted. 4. Having heard either side, I find that though the revision petitioner disputed the alleged borrowal of Rs.4,80,000/- on 28.1.2006, the liability, of course on a different head is not disputed. He had admitted the issuance of the cheque. In the above circumstance, I find that the courts below were justified in arriving a conclusion that Ext.P1 was issued in discharge of the liability. Exts.P2 Crl.R.P.No.1539 of 2009. -: 4 :- and P3 would show that Ext.P1 was dishonoured as 'account closed'. Exts.P4, P5 and P6 would show that demanding discharge of the liability, a lawyer notice was caused. There is no case that the liability was discharged. So, the first respondent was justified in launching the prosecution. In the above circumstance, I find that the conviction under challenge is unassailable as it is based upon cogent evidence. The revision petitioner was aged 68 years during the trial stage. He was stated to be an agriculturist. Taking into account of his status and that there are long standing monetary transactions between the revision petitioner and the first respondent, I find that the revision petitioner is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court with direction to pay the compensation as ordered by the courts below would meet the ends of justice. Crl.R.P.No.1539 of 2009. -: 5 :- 5. The revision petitioner has got a case that because of the objection caused by the first respondent regarding the sale of the property, the amount could not be paid off. The dispute in between the revision petitioner and the first respondent regarding the investment over the theatre is left open to the parties. It is also submitted by the learned counsel for the revision petitioner that by Ext.P2 the first respondent had undertaken to the brother of the revision petitioner that in the event of payment of the amount, the case would be withdrawn. But, it is not disputed that liability was not discharged. Hence the withdrawal of the case doesn't arise. However, those matters are not sufficient enough to interfere with the conviction under challenge. In the result, this revision petition is allowed in part. While confirming the conviction under challenge the Crl.R.P.No.1539 of 2009. -: 6 :- sentence is reduced to imprisonment till the rising of the court. The order to pay compensation to the first respondent is sustained with default sentence thereon. The revision petitioner is granted three months time to pay the liability. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN (Judge) Kvs/-