IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3186 of 2005()
1. SATHYAN, S/O. VELUKUTTY,
... Petitioner
Vs
1. RAMANATHAN, S/O. SARASWATHI AMMA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.SREELAL WARRIER
For Respondent :SRI.G.D.PANICKER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :10/11/2008
O R D E R
M.N. KRISHNAN, J.
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CRIMINAL.R.P. NO. 3186 OF 2005
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Dated this the 10th day of November, 2008.
O R D E R
This revision is preferred against the judgment of the
Sessions Judge, Thrissur in Crl.A.699/03. The said appeal
had been preferred against the conviction and sentence
passed by the Judicial First Class Magistrate, Chalakudy in
C.C.756/00. It was an action initiated u/s 138 of the N.I.
Act. The trial court found the accused guilty u/s 138 and
convicted and sentenced him to undergo simple
imprisonment for a period of three months and to pay a
compensation of Rs.2,00,000/- in default to undergo simple
imprisonment for three months. In appeal the conviction
was confirmed, sentence was modified into one of
imprisonment till the raising of the Court and to pay a
compensation of Rs.2,25,000/- and in default to undergo
simple imprisonment. It is against that decision the accused
has come up in revision.
Cr.R.P. 3186 OF 2005
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2. Heard the learned counsel for the revision
petitioner as well as the counsel for the respondent. At the
out set the limitation of revisional Court has to be
mentioned. i.e, Unless there is illegality, irregularity,
perversity or total mis-appreciation of evidence the revisional
Court is not expected to entertain any question on facts. The
learned counsel for the revision petitioner would submit
before me that he moved an application u/s 311 for
comparing the signatures in Exts.D1 and D2 which was
dismissed for non payment of the amount for sending it to
the expert. The appellate court also did not entertain the
plea and at this revisional stage this Court may not be able
to entertain the case especially when there are other
circumstances pointed out.
3. It is the case of the complainant that the accused
had borrowed a sum of 2,00,000/- on 2.3.00 and in
discharge of the liability had issued Ext.P1 cheque which
when presented for encashment returned with endorsement
insufficiency of funds. Thereafter a statutory notice was
Cr.R.P. 3186 OF 2005
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issued and as no payment was made action was initiated u/s
138.
4. The defence of the revision petitioner appears to
be that in the year 1997 he had borrowed a sum of
Rs.75,000/- and at that time has handed over a cheque to
the complainant as security which has been misused by him
for filing the complaint. The Court below appreciated the
evidence of the complainant as well as the accused and
found in favour of the complainant. The Courts below found
that even according to the accused the discharge was made
as early as in June, 1998 and the substantial documents
relied on for the purpose of proving the discharge are
thereafter and if the amount has been already paid there was
no necessity for the mother to execute the document in
favour of the complainant towards discharge of the liability.
5. So far as the slips were concerned namely Exts.D2
and D3 the Courts below found that the complainant had
denied its execution and the revision petitioner did not
succeed in proving the same. So taking into consideration
Cr.R.P. 3186 OF 2005
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the negotiable instrument namely Ext.P1 cheque and the
presumption u/Ss. 118 and 139 of N.I. Act in the absence of
acceptable evidence to rebut the presumption under those
Sections the Courts below found in favour of the complainant
and held that the accused had committed an offence u/s 138.
One cannot find any irregularity, illegality or perversity in
such a finding and therefore there is no scope to interfere
with the conviction u/s 138.
6. Learned counsel lastly submits that some leniency
may be shown in the case of punishment. Appellate court has
already shown leniency by reducing three months
imprisonment to one of imprisonment till the raising of the
Court but enhanced the compensation u/s 357(3)Cr.P.C.
from 2 lakhs to 2.25 lakhs. Being a criminal prosecution I
feel some leniency can be shown in 138 matters and
therefore it will be only just to reduce the amount to
Rs.2,00,000/- and further to convert it as fine.
In the result the Criminal Revision is disposed of as
follows:
Cr.R.P. 3186 OF 2005
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(1) The conviction u/s 138 of the N.I. Act is upheld.
(2) The sentence is modified and the revision
petitioner is directed to undergo simple imprisonment for one
day, i.e. till the raising of the Court and to pay a fine of
Rs.2,00,000/- which on realisation be paid to the
complainant in the case.
(3) In case of default of payment of fine the revision
petitioner has to undergo imprisonment for a period of two
months.
(4) The revision petitioner shall appear before the trial
court to receive the sentence on 5.2.2009 and also for
payment of fine. In default the trial court is directed to
execute the sentence.
The Crl.R.P. is disposed of as above.
M.N. KRISHNAN, JUDGE.
ul/-