IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3045 of 2009()
1. M.M.SHEREEF, AGED 65,
... Petitioner
Vs
1. MUHAMMED BASHEER,
... Respondent
2. STATE OF KERALA, REPRESENTED
For Petitioner :SRI.JAISON JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :30/09/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.3045 of 2009.
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Dated this the 30th day of September, 2009.
O R D E R
The revision petitioner is the accused in
CC.No.1933/2004 on the file of the Judicial Magistrate of
the First Class-I, Aluva. The first respondent prosecuted
the revision petitioner alleging offence under Section 138 of
the Negotiable Instruments Act. The learned Magistrate,
after due trial, arrived a conclusion of guilt. Consequently,
the revision petitioner was convicted and sentenced to
simple imprisonment for three months. He was further
directed to pay Rs.25,000/- as compensation, to the first
respondent under Section 357(3) of the Criminal Procedure
Code. In appeal, the Addl.Sessions Judge, (Adhoc-III),
N.Paravur confirmed the conviction. Assailing the legality,
correctness and propriety of the above conviction and
sentence as confirmed in appeal, this revision petition was
filed.
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2. Having heard the learned counsel for the revision
petitioner and perusing the judgments impugned, I find that
the first respondent, who was examined as Pw1, supported
by Exts.P1 to P9, had succeeded to establish that the
revision petitioner owed a sum of Rs.25,000/- to the first
respondent and in discharge of that liability Ext.P1 cheque
dated 1.1.2004 was issued and that when Ext.P1 was sent
for collection, it was dishonoured for insufficiency of funds,
as evidenced by Exts.P2 to P5 memos. Though a lawyer
notice, copy of which was marked as Ext.P6, was caused
demanding discharge of the liability and it was
acknowledged by the revision petitioner as evidenced by
Ext.P9, the liability was not discharged. The defence of the
revision petitioner is that out of business transaction some
amount was due to the first respondent and at the instance
of one Koya an account was opened in Canara Bank and a
blank cheque was issued as a security. It is the support of
that contention DWs.1 and 2 were examined. DW2 had
Crl.R.P.No.3045 of 2009.
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even gave to the extent that the liability wad discharged.
The revision petitioner has no any such case of discharge.
There is no reply to the notice demanding discharge.
Silence after the notice looms large. It is in the
circumstance the courts below disbelieved DWs.1 and 2.
The evidence of DWs.1 and 2 is not sufficient enough to
rebut the legal presumption under Sec.118 and 139 of the
Negotiable Instruments Act which supports the case of the
first respondent. Such being the material on record, I find
that the courts below had correctly appreciated the
evidence and arrived a finding of guilt. There is no error,
illegality or impropriety to be rectified in revision. The
conviction under challenge is unassailable.
3. Regarding sentence, I find that the revision
petitioner who is a senior citizen is entitled to more leniency
and a sentence of imprisonment till rising of the court with
a fine of Rs.25,000/- with default sentence for four months
would meet the ends of justice.
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4. In the result, the revision petition is allowed in
part. While confirming the conviction, the sentence is
reduced to imprisonment till rising of the court and a fine of
Rs.25,000/- with default sentence of simple imprisonment
for four months. Fine, if realised, shall be paid to the first
respondent as compensation under Sec.357(1) of the Code
of Criminal Procedure. The revision petitioner is granted
six months’ time for payment of fine, provided, he executes
a bail bond for Rs.15,000/- (Rupees fifteen thousand only)
with two solvent sureties each for like sum to the
satisfaction of the trial court.
P.S.GOPINATHAN, JUDGE.
Kvs/-