IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 510 of 2001() ----------------------------- CRA NO.80/1996 OF ADDITIONAL SESSIONS COURT, KOTTAYAM CC NO.229/1994 OF JUDICIAL FIRST CLASS MAGISTRATE, CHANGANACHERRY REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- BABU JAMES, CHETHIMATTOM HOUSE, THOTTACKADU P.O., VATTOLY, KOTTAYAM DISTRICT. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------- 1. M/S.SOUTH INDIAN FINANCE, REP. BY ITS PARTNER, C.J.JOSEPH KUTTY, CHOTHIRAKUNNEL BUILDINGS, THOTTACKADU, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.RAMADAS FOR R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.510 OF 2001 -------------------------------------- Dated this the 23rd day of September, 2008. ORDER The first respondent, a financier initiated proceedings against revision petitioner in the court of Judicial First Class Magistrate, Changanacherry for offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the Act’). Revision petitioner was found guilty, convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.20,000/- with a direction that out of the fine if realised, Rs.10,000/- will be given to the first respondent as compensation. Revision petitioner took up the matter in appeal. Learned Additional Sessions Judge while confirming the conviction modified the substantive sentence to simple imprisonment for three months and the amount of fine to Rs.12,000/- retaining the direction to pay Rs.10,000/- to the first respondent as compensation. 2. Heard counsel on both sides. Learned counsel for the revision petitioner submits that the conviction of the revision petitioner is not sustainable. He also submitted that the substantive sentence awarded is excessive. 3. According to the first respondent, revision petitioner borrowed Rs.20,000/- and the principal amount together with interest payable thereon came to Rs.25,400/-. For the discharge of that debt, revision petitioner issued two cheques (one is Ext.P2 for Rs.10,000/- and the other, for the balance Crl.R.P.No.510/2001 2 amount of Rs.15,400/-. I am told that in respect of cheque for Rs.15,400/-, case was filed against the revision petitioner which was settled between the parties). PW1 gave evidence regarding the alleged transaction culminating in the execution of Ext.P2. Revision petitioner claimed that he had issued signed blank cheques which were misused. Courts below, acting upon the evidence of PW1 found in favour of due execution of the cheque and that revision petitioner has not rebutted the presumption under Section 139 of the Act. I did not find any reason to interfere with those concurrent findings. Dishonour of the cheque for insufficiency of funds is proved by Ext.P3. That, first respondent intimated the dishonour and demanded payment of the amount are proved by Exts.P4 to P6. In the circumstances, conviction of the revision petitioner is unassailable. 4. So far as the sentence is concerned, I am inclined to think that simple imprisonment till the rising of the court is sufficient to meet the ends of justice. I make it clear that the sum of Rs.12,000/- directed to be deposited by the revision petitioner in the trial court will be treated as compensation payable to the first respondent. Resultantly, the Revision Petition is allowed in part in the following lines:- (1) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. (2) The revision petitioner shall deposit the sum of Rs.12,000/- (Rupees Twelve thousand only) in the trial court within two months from this day Crl.R.P.No.510/2001 3 for payment to the first respondent by way of compensation and in default of deposit, the revision petitioner shall undergo simple imprisonment for two months. (3) The first respondent is allowed to withdraw the compensation deposited by the revision petitioner. (4) The revision petitioner shall surrender in the trial court on 25.11.2008 to receive the sentence. Bail bond is cancelled. Crl.M.P.No.2428 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.510/2001 4 Thomas P.Joseph, J. Crl.R.P.No.510 of 2001 ORDER 23rd September, 2008