IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.Rev.Pet.No. 68 of 2004(C) -------------------------------------- CRA.88/2000 of SESSIONS COURT, MANJERI CC.144/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ C.ASSAINAR, S/O. MOHAMMED HAJI, CHUNDIYANMOOCHI HOUSE, AMBALAKKADAVU P.O., KALIKAVU. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. VIJAYARAJAN C., S/O. KANARAN, CHATHANMARATHODIKA, ARIMANAL P.O., KALIKAVU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SRI.M.K.PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.N. KRISHNAN, J. --------------------------- CRL.R.P.NO.68 OF 2004 ------------------------------ Dated this the 14th day of July, 2009 O R D E R This revision petition is preferred against the judgment in Crl.A.No.88/2000 whereby the learned Sessions Judge, Manjeri had confirmed the conviction passed under Section 138 of the N.I.Act and modified the sentence by imposing S.I for two months and to pay a compensation of Rs.50,000/=. The said appeal was preferred against the conviction and sentence passed by JFCM-I, Perinthalmanna in C.C.No.144/1999. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/= and towards the discharge of the liability, had issued Ext.P1 cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Statutory notice was issued for which, no reply was sent and thereafter, prosecution was launched. 2. In the trial court, PWs 1 and 2 were examined and Exts.P1 to P5 were marked. The trial court accepted the evidence of PWs 1 and 2 and held that there is no evidence 2 CRL.R.P.NO.68/2004 worth rebuttal and therefore, found the accused guilty under Section 138 of the N.I.Act. The appellate court also reaffirmed the very same decision. Admittedly, the cheque belongs to the accused and there is no case for the accused that the cheque leaf had been stolen from him. The Bank Manager had deposed that the cheque is sent back only for the reason that there was no sufficiency of fund. The court basing upon the evidence of PWs 1 and 2 accepted the case and passed the order. The appellate court re-appreciated the entire matter and held in favour of the complainant but modified the sentence. 3. It has to be remembered that a court sitting in revisional jurisdiction has got only limited powers and it is not even entitled to re-appreciate the evidence, but it can interfere only if there is perversity or mis-appreciation of evidence to that extent which amounts to very serious prejudice to the accused. But, in this case, the evidence is one sided and not even a reply is sent and therefore, I do not find any ground to interfere with the decision rendered by 3 CRL.R.P.NO.68/2004 the trial court confirmed by the appellate judge. 4. So far as the sentence is concerned, I feel leniency can be shown and in stead of sending a person to jail for months together, he can be sentenced to imprisonment till the rising of the court and to pay a compensation of Rs.50,000/=, which on realisation shall be disbursed to the complainant. 5. In the result, the criminal revision petition is disposed of as follows: 1. The conviction under Section 138 of the N.I. Act is sustained. 2. The sentence is modified and the accused is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.50,000/= under Section 357(3) of the Criminal Procedure Code, which on realisation, shall be paid to the complainant on appropriate application. 3. If any amount is deposited in the court towards the suspension of sentence, that can be given credit to the total amount to be paid as compensation and it shall also be 4 CRL.R.P.NO.68/2004 disbursed to the complainant. The accused shall present before the court to receive the sentence and to pay the compensation on 14.10.2009 failing which the court below shall execute the sentence. M.N. KRISHNAN, JUDGE cl 5 CRL.R.P.NO.68/2004 6 CRL.R.P.NO.68/2004