IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.Rev.Pet.No. 3539 of 2005(B) ----------------------------------------- CRA.765/2004 of SESSIONS COURT, KOZHIKOE CC.178/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI ...................................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ V.P.CHEKKOTTY, VALIYAPARAMBATH HOUSE, MEPPAYUR P.O., KOYILANDY. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------------------- 1. K.P.NIDHEESH, S/O.CHANDRAN, KANCHANA PALACE, PAYYOLI P.O., THURAYUR AMSOM DESOM, KOYILANDY TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT.K.V.RESHMI FOR R1 PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.R.P.NO.3539 OF 2005 ------------------------------ Dated this the 14th day of August, 2009 O R D E R This revision is preferred against the judgment passed by the Sessions Judge, Kozhikode in Crl.A.No.765/2004. The said appeal was preferred against the conviction and sentence passed by the JFCM, Payyoli in C.C.No.178/2003. The accused was sentenced by the trial court to undergo imprisonment for 8 months and directed to pay a compensation of Rs.93,000/- and in default to undergo S.I for two months. In appeal, the Sessions Judge reduced the compensation amount to Rs.80,000/-. It is against that decision, the present revision is filed. 2. It is the case of the complainant that the accused had borrowed a sum of Rs.80,000/= and towards the discharge of the liability had issued a cheque which when presented for encahsment returned with the endorsement of insufficiency of funds. Thereafter a lawyer notice was issued and action initiated. CRL.R.P.NO.3539/05 2 3. The defence appears to be that the father of the complainant is a moneylender and had some financial transaction with the accused and a blank cheque had been given which was utilised by the complainant for filing the complaint. 4. PW1 and DWS1 and 2 were examined. PW1 had categorically stated before the court that the cheque was issued towards the discharge of the liability. The signature in the cheque is admitted. The possession of the cheque with the complainant is also proved. The cheque is a very valid negotiable instrument and under ordinary circumstances it will not pass on to any person who does not have anything to do with it. The evidence of Pw1 proved the execution of the cheque as well. The defence case is that there was some transaction between the father of the complainant and the accused and it was at that time, the blank cheque was given. The courts below had appreciated the evidence of DWs 1 and 2 and had opined that DW2 did not even say that Ext.P1 cheque was not issued by the complainant to the accused. So, both the courts have after elaborately considering the evidence concluded that Ext.P1 cheque was issued towards the CRL.R.P.NO.3539/05 3 discharge of the liability. So far as the other statutory requirements are concerned, there is some mistake in the notice regarding the date etc. The cheque was dishonoured only on 10.6.2003 The notice is dated 30.6.2003. The postal receipt is dated 8.7.2003. The statutory period is 30 days. Other necessary formalities are complied with. There is no defect in those lines also. The courts below have concurrently found on facts against the accused and I do not find any perversity or misappropriation of the evidence which warrants interference by this Court. Therefore, the finding of guilt under Section 138 of the N.I.Act is sustained. 5. So far as the sentence is concerned, I am inclined to take a lenient view. If the accused wants to wipe off the liability, there is no need to send him in jail, I think justice can be met by sentencing him to undergo imprisonment till the rising of the court and to pay a compensation of Rs.80,000/= under Section 357(3) of the Cr.P.C. 6. In the result, the Crl.R.P. is disposed of as follows: The finding of guilt under Section 138 of the N.I. Act is sustained. 2. The sentence is modified and the accused is CRL.R.P.NO.3539/05 4 sentenced to undergo imprisonment till the rising of the a court and to pay a compensation of Rs.80,000/= to the complainant and in default of which he shall undergo S.I for two months. The accused is directed to appear before the court below to receive the sentence and to pay the compensation on 30.11.2009 M.N. KRISHNAN, JUDGE cl CRL.R.P.NO.3539/05 5 CRL.R.P.NO.3539/05 6 CRL.R.P.NO.3539/05 7 M.N. KRISHNAN, JUDGE cl CRL.R.P.NO.3539/05 8