IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2782 of 2006() ----------------------------------------- CRA.263/2004 of ADDL.SESSIONS COURT (FAST TRACK-I), ALAPPUZHA CC.394/2002 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------ C.S.RATHEESH KUMAR, S/O.C.V.SUBRAMANYAN, CHIRAYIL VEEDU, THONDANKULANGARA WARD, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE -------------------------------------------------------------------------------------- 1. T.U.MANNUAL, THUKKUM MURIYIL, SANATHANAM WARD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV.SRI.SUNIL J.CHAKKALACKAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== Crl.R.P. No.2782 OF 2006 ===================== Dated this the 11th day of December 2008 O R D E R This revision petition is preferred against the judgment of the Addl.Sessions Court(Fast Track Court-I), Alappuzha in Crl.A.No.263 of 2004. The said appeal was preferred against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in C.C.No.394 of 2002 passed by the Judl.I Class Magistrate Court, Ambalappuzha. The trial court found the accused guilty and convicted him to undergo simple imprisonment for six months and to pay Rs.1,00,000/- as compensation to the complainant under Section 357(3) of the Crl.P.C. In appeal, the said conviction and sentence were confirmed and it is against that decision the accused has come up in revision. 2. Heard the counsel on both sides. It is the case of the complainant that the revision petitioner had borrowed a sum of Rs.1,00,000/- in January, 2002 and towards the discharge of liability the accused had issued Ext.P1 cheque which when presented for encashment, was returned with the endorsement 'insufficiency of funds'. After sending statutory notice, the CRL.R.P.2782/2006 -:2:- action was initiated under Section 138 of the N.I.Act. The case of the defence appears to be that he had some earlier transactions with the complainant and at that time he had issued six blank cheques as security and the complainant had misused one of them to institute the case. 3. In the trial court, PW1 was examined. Exts.P1 to P5 and D1 to D3 were marked. Both the courts below analysed the evidence of PW1 and found that his evidence is acceptable regarding the execution of Ext.P1 cheque and that it is towards the discharge of the liability. When execution of the cheque is proved, then necessarily the presumption under Sections 118 and 139 of the N.I.Act will come into play. The rebuttal evidence attempted to be adduced is in the form of Exts.D2 and D3. D2 and D3 is of the years 2000 and 2001 and at the most it may prove there was an earlier transaction between the two. When there is acceptable evidence regarding the execution of Ext.P1 and the presumption is not rebutted, necessarily one cannot find fault with the trial court or the appellate court in finding the revision petitioner guilty under Section 138. I do not find any illegality, irregularity or perversity in the order passed by the courts below, which warrants interference at the hands of the revisional court. So, I sustain the conviction passed under Section 138. 4. The next question is regarding sentence. The revision petitioner CRL.R.P.2782/2006 -:3:- has been sentenced to undergo simple imprisonment for a period of six months and to pay Rs.1,00,000/- to the complainant as compensation under Section 357(3). Learned counsel for the revision petitioner prays for leniency. After hearing the learned counsel for the petitioner and the other side as well, I feel some leniency can be shown provided there is real genuine interest to wipe off the liability at least. Therefore, I modify the sentence to undergo imprisonment till the raising of the court and convert the compensation into that of fine which on realisation be disbursed to the complainant. In the result, the revision petition is disposed of as follows: (1) The conviction under Section 138 of the NI Act is sustained. (2) The sentence is modified and the petitioner is directed to undergo simple imprisonment till the raising of the court and to pay a fine of Rs.1 lakh which on realisation shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for a period of two months.(3) The revision petitioner shall appear before the trial court for receiving sentence and for making payment of fine on 16.3.2009. (4) In case of failure to be present, the trial court shall execute the sentence. (5) If any amount is deposited as compensation, it shall be converted into fine and the said amount shall be CRL.R.P.2782/2006 -:4:- disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-