IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 Crl.Rev.Pet.No. 1927 of 2011 ------------------------------------- CRA.263/2008 of I ADDL. SESSIONS COURT, KOLLAM CC.1329/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER/ACCUSED: PREMJITH,S/O.JAYADHARAN, MEENATHERIL VEEDU, VALLANATHURUTHU, KARUNAGAPPALLY. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT/RESPONDENT/COMPLAINANT: 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2. JOHNSON, S/O.KOCHUKUNJU, PANDAKASALA PUTHEN VEEDU, KOLLAM, KARUNAGAPPALLY-690 518. R1 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.Satheesachandran, J. ------------------------------------------- Crl.R.P.No.1927 of 2011 ------------------------------------------- Dated this the 11th day of August, 2011 ORDER Revision is by the accused convicted for the offence under Section 138 of the Negotiable Instruments Act concurrently by the two inferior courts. The learned Magistrate, negativing the plea of not guilty canvassed by the accused, on his conviction, sentenced him to undergo simple imprisonment for one month and to pay a fine of `.1,00,000/-. The Sessions Judge, turning down the appeal of the accused, confirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision. 2. I heard the learned counsel for the petitioner. 3. Before me, two fold challenges are pressed into service by the learned counsel for the petitioner to assail the conviction concurrently rendered against him by the two courts below. In respect of the cheque involved, two notices had been issued to the accused and as the offence was complete with the issuance of the first notice, on the expiry of the period fixed by the Statute thereafter for filing the complaint, according to the counsel, the complaint filed after issuing the second notice, on presentation of cheque again and getting it CRRP 1927/2011 2 dishonoured, could not have been taken cognizance of by the learned Magistrate. Both the courts below have not appreciated the challenge raised by the accused with regard to the limitation canvassed for the presentation of the complaint with reference to Exhibit D1 notice, the first notice issued on presentation of the dishonoured cheque before the Bank at the first instance, is the submission of the counsel. Secondly, it is contended that despite denial of execution of the instrument, the material discrepancies brought out in the evidence of the complainant casting doubts on the merits of the case, there was improper appreciation of evidence and that has resulted in forming conclusions causing prejudice to the accused, and also miscarriage of justice. 4. Going through the judgments rendered by the courts below, I find that none of the grounds of attack raised by the counsel to assail the conviction is sustainable. Earlier, after trial, the Magistrate had passed an order of acquittal in favour of the accused accepting his plea that presentation of the complaint was barred by limitation in view of Exhibit D1 notice issued. That order of acquittal was challenged before this Court, and whatever be the view expressed by the learned Magistrate to pass the order of acquittal was found to be improper, incorrect and unsustainable. Holding that the complaint filed before the court on the basis of presentation of the cheque and CRRP 1927/2011 3 issue of the second notice was within time and the period of limitation has to be reckoned with reference to that date, the order of acquittal was reversed and the case was remanded back to the trial court for fresh disposal. It is no longer open to the accused, who is bound by the remand order, to contend again that the complaint is barred by limitation in view of Exhibit D1 notice issued earlier. As regards the challenge denying execution of the cheque, it is seen that no such challenge was mooted before the Magistrate or before the Sessions Judge, where the defence was only a plea of discharge. The amount covered by the cheque had already been paid was the defence taken by the accused in trial. 5. The Magistrate, who had the opportunity to record the evidence of the complainant as PW1 and that of the accused as DW1, found the testimony of the complainant credible, trustworthy and convincing and that of the accused unworthy of any merit. No material whatsoever was produced to substantiate the plea of discharge. The learned Sessions Judge, after re-appraisal of the evidence, confirmed the view taken by the Magistrate on the materials placed to conclude that the plea of discharge canvassed by the accused is devoid of any merit. 6. Submissions made by the counsel as regards improper appreciation of evidence by the courts below, contending that there CRRP 1927/2011 4 are material discrepancies in the evidence of the complainant as PW1, have no merit, as the finding of fact entered by the inferior courts is not open for interference in exercise of the revisional jurisdiction unless it is shown to be perverse. If the view formed by the inferior courts is possible on the materials placed, an alternate view also could be drawn as different from that view, is no ground for invoking the revisional jurisdiction. I do not find any impropriety or illegality, leave alone any infirmity, in the conclusion arrived at by the two courts below to hold the accused guilty. Conviction of the accused in such circumstances is unassailable. 7. So far as the sentence imposed against the accused, I find that substantive term of imprisonment for one month imposed, as confirmed by the Sessions Judge, having regard to the nature of the offence for which he is convicted, is not warranted. Though the Statute provides for imposition of a prison term for the offence under Section 138 of the Negotiable Instruments Act, such grave punishment against the offender need be imposed only if special circumstances are made out. That is all the more so, since dishonour of the cheque giving rise to prosecution of a drawer may arise for reasons which were never in his contemplation at the time of making the instrument and handing it over. No special circumstance is presented in the case to retain the substantive term of imprisonment CRRP 1927/2011 5 imposed against the accused. So much so, the substantive term of imprisonment imposed against the accused shall stand reduced and modified to imprisonment for a day, till rising of the court. The fine amount imposed with the default term shall remain intact. 8. At this stage, learned counsel for the petitioner requested for some time to pay off the cheque amount and thus avoid the default term of imprisonment. The cheque involved in the case is dated 15.2.1998. When that be so, there is no merit in the request made for further extension of time. However, taking note of the submissions made by the learned counsel for extension of time, there will be a direction to the learned Magistrate to keep in abeyance the execution of the sentence for a period of one month from today. Petitioner is directed to appear before the Magistrate on 20.09.2011 to serve out the substantive term of imprisonment for a day, till rising of the court, and to report payment of the fine amount fixed. In default of his appearance and non payment of the fine, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. The revision petition is disposed of. (S.S.Satheesachandran, Judge) tkv