IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Crl.Rev.Pet.No. 144 of 2003() ----------------------------- CRA.78/1997 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.9/1996 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- B. MOHANAN, VASANTHAM, PARAKUDI LANE, BHAGATH SINGH ROAD, PETTAH, THIRUVANANTHAPURAM. BY ADV. SRI.P.PARAMESWARAN NAIR RESPONDENT(S): RESPONDENTS: --------------------------- 1. GEETHAKUMARI. V., VIJAYA VILASA, MUTTADA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE ADDL.P.P., SRI.S.R. JAYAKUMAR. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.144 OF 2003 --------------------------------------------- Dated 21st July 2010 O R D E R Accused in C.C.9/1996 on the file of Judicial First Class Magistrate-IV, Thiruvananthapuram who was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act filed this revision challenging the concurrent conviction and modified sentence passed by Additional Sessions Judge, Thiruvananthapuramm in Crl.A.78/1997. First respondent lodged the complaint, taken cognizance by the learned Magistrate, contending that first respondent borrowed Rs.1,00,000/- and towards its repayment issued Ext.P1 cheque drawn in his account CRRP 144/03 2 maintained in Thiruvananthapuram Branch of Thiruvananthapuram District Co-operative Bank and when the cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds. Ext.P4 notice was sent under Ext.P5 postal receipt, demanding the amount covered by the dishonoured cheque. It was received by the petitioner under Ext.P6 postal acknowledgment. He did not pay amount and instead sent Ext.P7 reply raising false contentions and thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Manager of Syndicate Bank, Sasthamcotta branch was examined as PW2 and Manager of District Co- operative bank was examined as PW3. Petitioner did not adduce any evidence. When questioned CRRP 144/03 3 under Section 313 of Code of Criminal Procedure, case of the petitioner was that he did not receive any notice demanding the amount claiming Rs.1,00,000/- and he received Ext.D1 notice, which was received under Ext.P6 acknowledgment. 2. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him. Learned Sessions Judge also on re-appreciation of evidence confirmed the findings. Case of the revision petitioner is that courts below did not properly appreciate the evidence and it should have been found that first respondent has no capacity to pay the amount and first respondent did not send a notice demanding the amount covered by the dishonoured cheque and therefore, conviction is not sustainable. CRRP 144/03 4 3. When examined as PW1 first respondent specifically deposed that she sent original of Ext.P4 notice under Ext.P5 postal receipt and it was received by the petitioner under Ext.P6 postal acknowledgment. When PW1 was cross examined by the petitioner, he has no case that he did not receive Ext.P5 postal acknowledgment. His only case is that Ext.P4 is not the copy of the notice received by him. After the evidence of PW1 was recorded, he was re-called on an application filed by first respondent after producing Ext.P7 reply. PW1 proved Ext.P7 as the reply notice received from the petitioner. Except putting a suggestion to PW1 that facts stated in Ext.P7 is not correct, there is no case for the petitioner that he did not entrust Adv.Yesudasan Varghese to send Ext.P7 reply. Ext.P7 reply notice CRRP 144/03 5 establish that petitioner received two notices, one sent by the first respondent, evidently the original of Ext.P4 notice and another notice sent by the husband of first respondent. Ext.P7 shows that both notices were entrusted by the petitioner to Advocate Yesudasan Varghese to send a reply and Ext.P7 was sent as reply to both notices. When petitioner has no case that he did not entrust Yesudasan Varghese to send a reply, he cannot disown Ext.P7 notice, especially when Ext.D1 notice sent by the husband to which Ext.P7 reply was sent was produced by the petitioner himself. In such circumstances, contention of the petitioner that Ext.P4 is not the reply notice received by him under Ext.P6 postal acknowledge cannot be accepted. 4. Evidence of PW1 was properly CRRP 144/03 6 appreciated by the learned Magistrate and learned Sessions Judge. The stand taken by the petitioner in Ext.P7 reply notice is that he borrowed Rs.12,000/- from his colleague Omanakuttan four years ago and he had issued a cheque in the name of his brother M.S.Somasekhara Kurup who is the husband of the first respondent, and he did not borrow any amount from the first respondent or her husband. But PW1 when cross examined, she had no such case. Suggestion put to PW1 was that he only issued cheque dated 11/3/1995 for Rs.20,850/- and for that cheque notice was issued by the husband of first respondent and that amount was also paid. But evidently cheque referred to in cross examination is the cheque based on which husband of the first respondent sent a notice. At the same time, case set up in CRRP 144/03 7 Ext.P7 reply is not that a cheque issued either to the first respondent or her husband or Omanakuttan. In the light of the inconsistent and contradictory case, courts below were fully justified in accepting the evidence of PW1. Evidence of PW1 establishes that petitioner borrowed Rs.1,00,000/- and towards its repayment issued Ext.P1 cheque. It is also proved by Pws.2 and 3 that Ext.P1 cheque was dishonoured for want of sufficient funds. Evidence of PW1 that Exts.P4 to P6 establish that first respondent has complied with all statutory formalities. In Such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge CRRP 144/03 8 modified the sentence to simple imprisonment for three months and compensation of Rs.1,00,000/- and in default simple imprisonment for three months. Ext.P1 cheque was issued on 19/6/1995. Considering entire facts and circumstances of case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a compensation of Rs.1,05,000/- and in default simple imprisonment for two months. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. In supersesssion of the sentence awarded by the learned Sessions Judge, petitioner is sentenced to imprisonment till rising of court and compensation of Rs.1,05,000/- (Rupees One Lakh CRRP 144/03 9 Five Thousand only) to be paid to the first respondent and in default simple imprisonment for two months. Petitioner is directed to appear before Judicial First Class Magistrate- IV, Thiruvananthapuram on 31/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.