IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1422 of 2008() ------------------------------ CRA.199/2006 of ADDL. SESSIONS COURT (FAST TRACK-I), TRIVANDRUM ST.419/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- G.SASEENDRAN NAIR, HOTEL AYILLIYAM,T.C.43/2120, THAKARAPARAMBU ROAD,SREEKANTESWARAM, THIRUVANANTHAPURAM. BY ADV. SRI.SREEKANTH S.NAIR RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT :- -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R.ANILDAS, T.C.63/2029,VAISHNAVAM,NRA-28, AMBALATHARA,POONITHURA P.O., THIRUVANANTHAPURAM. ADV. SRI.P.A.AHAMMED FOR R2 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1422 of 2008 --------------------------------- Dated this the 22nd day of June 2010 O R D E R This revision petition is preferred against the judgments of the court below by which the revision petitioner/accused is stand convicted under Sec.138 of the N.I.Act. 2. The case of the complainant is that the accused borrowed a sum of Rs.1,00,000/- and towards the discharge of the said liability, the accused issued a cheque which when presented for encashment dishonoured and the cheque amount was not repaid in spite of the formal demand made by the complainant and thus, the revision petitioner has committed the offence punishable under Sec.138 of the N.I.Act. 3. During the trial of the case, in the court of Judicial Crl.R.P.No.1422 of 2008 : 2 : First Class Magistrate-II, Thiruvananthapuram in S.T.No.419/2002, the complainant has adduced oral evidence as PW1 and documentary evidence Exts.P1 to P7. Ext.D1 is the defence exhibit produced. The trial court on the basis of the available materials found that the revision petitioner/accused is guilty and he is accordingly convicted and sentenced to undergo imprisonment for 3 months and also directed to pay a sum of Rs.1,00,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. The default sentence is fixed as simple imprisonment for two months. Though, an appeal was filed at the instance of the revision petitioner, by judgment dated 11.1.2008 in Crl.A.No.199/2006, the court of Addl.District & Sessions Judge, Fast Track-I, Thiruvananthapuram dismissed the appeal confirming the conviction and sentence. This revision petition is preferred against the above conviction and sentence. 4. I have heard the learned counsel appearing for Crl.R.P.No.1422 of 2008 : 3 : the revision petitioner as well as the counsel appearing for the respondent. I have also perused the judgments of the courts below. 5. Reiterating the stand taken by the defence during the trial, the learned counsel submitted that the complainant has miserably failed to establish the transaction, the execution and issuance of the cheque. According to the learned counsel, it is brought out on record that the complainant has no such capacity to part with such a huge amount like Rs.1,00,000/-. Thus, according to the learned counsel, the courts below were committed wrong in convicting the revision petitioner. 6. The arguments advanced by the learned counsel really based upon the facts and materials on record, which has elaborately considered by the trial court as well as the lower appellate court and found against the revision petitioner. Both the courts below has found that the accused/revision petitioner miserably failed to rebut the Crl.R.P.No.1422 of 2008 : 4 : presumption available in favour of the complainant. The attempt made by the defence rejected by the courts below and finally found that the accused had failed to rebut the presumption. Thus, according to me no case is made out by the revision petitioner to interfere with the concurrent finding arrived on by the courts below. Therefore the revision petitioner is devoid of merit and accordingly there is no merit in the revision petition. 7. The learned counsel for the revision petitioner submitted that the revision petitioner has already been arrested on 6.2.2010 and now he had undergone substantial sentence imposed against him and hence it is submitted that showing some leniency the default sentence may be reduced. I find no reason to reject the said request and accordingly the default sentence fixed by the courts below is reduced from 2 months to 1 month simple imprisonment. Subject to the above modification of the default sentence, the revision petition is dismissed. Crl.R.P.No.1422 of 2008 : 5 : It is submitted by the learned counsel that as the revision petitioner/accused has been arrested on 6.2.2010 and thereafter he had undergone the imprisonment and the substantial period of imprisonment is already over by 6.5.2010. If that be so, especially in the light of the direction made by this Court with respect to the default sentence, by 6.6.2010, the revision petitioner might have completed the default sentence also. If that be so, the petitioner is entitled to get release from the jail, if he is not required in any other case. Hence, the Registry is directed to send the gist of order to the Sub Jail, Thiruvananthapuram for appropriate action. V.K.MOHANAN, JUDGE. Jvt