IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 2633 of 2008() ------------------------------ CRA.683/2005 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.549/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVISION PETITIONER:ACCUSED/APPELLANT: ---------------------------------------------------------------------- A.GOPAKUMAR, S/O.APPUKUTTAN NAIR, T.C.43/705, KAMALESWARAM, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENTS: COMPLAINANT/RESPONDENTS: ------------------------------------------------------------------------- 1. JAYAKUMAR, S/O.KUMARA PILLAI, CHERIYIL, KUMARAMANGALAM, NEDUNKKADU, NARUVAMOODU (P.O), THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 2633 OF 2008 =========================== Dated this the 14th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. First respondent lodged the complaint contending that towards repayment of Rs.85,000/- borrowed by petitioner, he issued Ext.P1 cheque drawn in his account maintained in Vazhuthacaud Branch of Vaisya Bank dated 18.1.2002 and when the cheque was presented for encashment, it was dishonoured under Ext.P2. First respondent sent Ext.P3 notice demanding the amount covered by the dishonoured cheque. It was received by the petitioner. Instead of paying the amount, he sent Ext.P6 reply denying the liability and thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P8 CRRP 2633/08 2 were marked on his side. Petitioner was examined as DW3 and two witnesses were examined as Dws.1 and 2 and Exts.D1 to D10 were marked. Learned Magistrate on the evidence disbelieved the defence set up by petitioner that Ext.P1 cheque was issued as a blank cheque to M.K.Viswambaran, brother-in- law of first respondent and husband of his sister DW2 and accepted the evidence of PW1 and found that Ext.P1 cheque was issued towards repayment of the amount due. Finding that it was dishonoured as the account was closed subsequent to the issuance of the cheque and there was no sufficient amount in the account to honour the cheques and first respondent has complied with all statutory formalities, petitioner was convicted and sentenced to simple imprisonment for five months and a compensation of Rs.85,000/- and in default simple imprisonment for two months by Judicial First Class Magistrate V, Thiruvananthapuram. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in CRRP 2633/08 3 Crl.A.683/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction. But modified the sentence to imprisonment till rising of the court and a fine of Rs.85,000/- and in default simple imprisonment for three months with a direction to pay fine to first respondent as compensation under section 357(1) of Code of Criminal Procedure, on realisation. The revision petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. The records called for were perused. 3. The argument of the learned counsel is that courts below did not properly appreciate the evidence and should have accepted the evidence of the petitioner as DW3 and DW1 the and attesting witness to Ext.D1 receipt and should have found that Ext.P1 cheque was not issued to first respondent towards discharge of any liability. The learned counsel argued that eventhough petitioner sought to examine Viswambaran, as he was CRRP 2633/08 4 not available the said Viswambaran who is none other than the brother-in-law of first respondent could not be examined and by examining DW1, Ext.D1 reciept was proved and Ext.D1 receipt probablise the case of the petitioner that Ext.P1 and another cheque were entrusted to Viswambharan by the petitioner based on Ext.D1 agreement and therefore Ext.P1 cheque was not issued towards discharge of any existing liability. Learned counsel finally argued that in any case petitioner may be granted sufficient time to pay the fine, in case conviction is to be confirmed. 4. Learned Magistrate and learned Sessions Judge elaborately considered the evidence and accepted the evidence of PW1 and disbelieved the evidence of Dws 1 and 3. Though DW2 the sister of first respondent was examined as his witness by the petitioner, evidence of DW2 is not in his favour. Ext.D1, the alleged receipt issued by Viswambaran which contains the recital that two blank cheques were handed over by the petitioner to Viswambaran CRRP 2633/08 5 was not accepted by the courts below. It is the case of petitioner that Viswambaran is a friend of the petitioner and money was due to Viswambaran from Babu Lukose and two cheques issued by Babu Lukose were handed over by Viswambaran to the petitioner to enable him to realise the amount from Babu Lukose and then to pay it to Viswambaran and towards the security two blank cheques were issued and subsequently Viswambaran left the scene and DW2 his wife handed over the balnk cheques to first respondent who presented it and lodged the complaint based on the cheque. First of all, it is admitted by petitioner himself that based on a cheque issued by Babu Lukose, petitioner himself instituted a suit for realisation of the amount alleging that the amount was borrowed by Babu Lukose from the petitioner and towards its repayment the cheque was issued. It is the very same petitioner who is now taking up a defence that the said cheque was not issued in his favour and no amount was due form Babu Lukose to him but to CRRP 2633/08 6 Viswambaran. It establishes the nature of petitioner and his integrity. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that evidence of DW3 cannot be believed. Though DW1 the attestor to Ext.D1 receipt deposed in favour of the petitioner, both the courts below did not rely on his evidence. On going through the evidence, it cannot be said that appreciation of evidence was perverse. In any case on appreciation of the evidence, the view taken by the courts below is a possible and reasonable view that could be taken. Hence exercising the revisional powers it is not for this court to reappreciate the evidence and substitute the findings of the courts below. Even if the evidence is reappreciated, I do not find any reason to interfere with that finding. In such circumstance finding of the courts below that petitioner issued Ext.P1 cheque towards the amount due to first respondent and inspite of notice the amount covered by the dishonoured cheque was not CRRP 2633/08 7 paid and first respondent has complied with all statutory formalities provided under section 138 and 142 is perfectly correct. His conviction for the offence under section 138 of N.I.Act is therefore legal and proper. Then the only question is with regard to the sentence. Though learned Magistrate sentenced petitioner to simple imprisonment for five months, learned Sessions Judge modified it to imprisonment till rising of the court and a fine, which is for the same amount covered under Ext.P1 cheque with a default sentence of simple imprisonment for three months. In the circumstance, I do not find any reason to interfere with the sentence also. But on the submission made by learned counsel appearing for petitioner, petitioner is granted three months time from today to pay the fine and appearance before the Magistrate. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE CRRP 2633/08 8 tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006