IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 51 of 2004(B) ----------------------------- CRA.196/2001 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.246/1999 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- MATHEW CHACKO, PALLICHIRA, KAINAKARY P.O., ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. K.P. SUDHAKARAN, KOLUTHADI VEEDU, CHENNAMKARY P.O., KAINAKARY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.SAJEEV FOR R1 R2 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.51 OF 2004 --------------------------------------------- Dated 2nd August, 2010 O R D E R Petitioner, the accused in C.C.246/1999 on the file of Judicial First Class Magistrate, Ramankary was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. Petitioner challenged the conviction and sentence before Sessions court, Alapuzha in Crl.A.196/2001. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and first respondent were CRRP 51/04 2 heard. 3. Argument of the Learned counsel is that Ext.D1 permit and Ext.D2 form No.V issued by the police establish that petitioner was in Minicoy Island till 15/5/1999 after he arrived there on 3/2/1999 and hence he could not have been in Kerala on 12/4/1999 or a week earlier to 12/4/1999 when allegedly the amount was borrowed and the cheque was issued. It was argued that courts below did not appreciate Exts.D1 and D2 in the proper perspective and as per the notification issued by the Administration of Union Territory of Laccadives, a permit is necessary for a person to enter in the Island and when he leaves the Island the permit is to be surrendered and when a person surrenders the permit, a certificate is to be issued and Ext.D1 permit establishes CRRP 51/04 3 that petitioner entered Minicoy Island in February 1999 and he was permitted to be there till 14/6/1999 and Ext.D2 certificate issued in Form V establish that he surrendered the permit only on 15/5/1999 and therefore, petitioner could not have been in Kerala on 12/4/1999 and hence, evidence of PW1 should have been disbelieved. Learned counsel also argued that courts below did not properly appreciate the evidence of PW1 and it should have been found that petitioner did not borrow any amount and did not issue Ext.P1 cheque towards discharge of any debt and therefore, the conviction is not sustainable. Learned counsel finally submitted that in any case, the sentence awarded is excessive and petitioner has already deposited 50% the cheque amount before the learned Magistrate as CRRP 51/04 4 directed by this court and therefore, the sentence may be modified. 4. Learned counsel appearing for the first respondent submitted that the trial court and the appellate court appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction or the sentence. 5. Ext.P1 cheque dated 12.4.1999 was admittedly issued from the account maintained by the petitioner. Fact that Ext.P1 cheque was dishonoured under Ext.P2 and first respondent sent original of Ext.P4 lawyer notice demanding the amount, and it was received by the petitioner and he did not pay the amount, are not disputed. Learned counsel also argued that in the light of Exts.D1 and D2, courts below should have found that petitioner was not CRRP 51/04 5 in Kerala on 12/4/1999 or a week previous to 12/4/1999 and hence, case of the first respondent should have been disbelieved. Learned Magistrate and learned Sessions Judge considered Ext.D1 and D2 in the light of the evidence of PW1. Ext.D1 copy of permit shows that petitioner was granted a permit, which enables him to be in Minicoy Island till 14/6/1999 and there is an endorsement on the reverse side of Ext.D1 to the effect that petitioner arrived in Minicoy Island on 3/2/1999. Ext.D1 does not show that petitioner did not leave Minicoy Island after 3/2/1999 and before he surrendered the permit. Ext.D1 also does not show whether photocopy of the permit produced was taken immediately on 3/2/1999 or just before the permit was surrendered in May 1999. Ext.D2 a certificate issued by Sub CRRP 51/04 6 Inspector of Police shows that petitioner is holder of Ext.D1 permit having validity till 14/6/1999. It also shows that permit was surrendered by the petitioner on 15/5/1999. Ext.D2 only shows that permit was surrendered on 15/5/1999. It does not show that after arrival of the petitioner in Minicoy on 3/2/1999 he did not leave Minicoy to Kerala before 15/5/1999. The Laccadive, Minicoy and Amindivi Islands (Restrictions on entry and residence)Rules, 1967 made available by the learned counsel appearing for the petitioner, being the notification published in Laccadives Gazette dated 13/9/1967, shows that after commencement of the Rules, no person who is not a native of the islands shall enter or reside in or attempt to enter or reside in the islands, except under and in accordance with CRRP 51/04 7 a permit issued by the competent authority. Rule 4 provides that permit may be issued, renewed or endorsed by the competent authority for entering into such islands or islands and for residence therein for such period as may be specified in the permit. Sub Rule 4 of Rule 8 provides that whenever during the period of validity of a permit, the holder thereof leaves an island whether for the purpose of proceeding to another island or to any place outside the islands, he shall present his permit to the nearest Registration Officer who shall make an entry therein regarding the date and time of departure of the holder and return the permit to the holder. Therefore, under Sub Rule 4 when a holder of permit leaves the island either to another island or to main island, he shall present the permit to the CRRP 51/04 8 nearest Registration officer who shall make an entry in the permit regarding the date and time of the departure and return it to the permit holder. Unless original permit is produced, or served copy of the permit as on the date of his surrender was produced, it cannot be verified whether there is any endorsement to show that holder of the passport had left the island and returned again. Proviso to Sub Rule 4 mandates that if the holder of a permit has no intention of returning to the island, he shall surrender his permit to such registration officer and that officer shall make an entry to that effect on the permit as well as in the register maintained by him and give the person surrendering the permit, a certificate in Form V. Therefore, certificate in Form No.V is to be issued only if the holder of the permit CRRP 51/04 9 surrenders the passport as he has no intention to return to the island again. Therefore, even if a holder of a permit leaves the island with an intention to come back, he need not surrender the permit. If if there is no surrender, no Form V certificate need be issued. He need only present the permit before the Registration Officer who has to make an endorsement on the permit and return it to the holder. If such a person who returns to the main island, again comes back to the island during the period when the permit is subsisting, he is entitled to be there till the expiry of the period under the permit. Therefore, for the reason that petitioner surrendered the permit on 15/5/1999, as seen in Ext.D2, it cannot be conclusively held that petitioner did not leave Minicoy island after CRRP 51/04 10 3/2/1999 and before 15/5/1999. Therefore, finding of the courts below that Exts.D1 and D2 do not establish that petitioner was not in Kerala on 12/4/1999 or a week prior to the date is perfectly in accordance with the evidence. That fact is clear from the evidence of DW1 also. Therefore, based on Exts.D1 and D2 it cannot be said that petitioner did not borrow the amount and did not issue Ext.P1 cheque towards repayment of the amount. 6. On appreciation of the evidence of PW1 and DW1, the view taken by the learned Magistrate and learned Sessions Judge is definitely a possible view which could be taken on appreciation of the evidence. I find no illegality or irregularity in appreciation of the evidence. In such circumstances, conviction of the petitioner for the offence CRRP 51/04 11 under Section 138 of Negotiable Instruments Act is perfectly legal and proper. 7. Then the only question is with regard to the sentence. Ext.P1 cheque is for Rs.46,750/-. It was issued on 12/4/1999. Learned Magistrate awarded a substantive sentence of simple imprisonment for six months. No compensation was awarded. Learned Sessions Judge modified the sentence by reducing the substantive sentence of simple imprisonment to three months. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and adequate compensation to the first respondent. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is CRRP 51/04 12 confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and compensation of Rs.50,000/- and in default simple imprisonment for two months. Petitioner is permitted to pay the amount directly to the first respondent and produce receipt before the learned Magistrate. Petitioner is directed to appear before Judicial First Class Magistrate, Ramankary on 11/8/2010 and satisfy the learned Magistrate that compensation has been paid. If petitioner has deposited any amount before the learned Magistrate, he need only deposit the balance amount. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.