IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.Rev.Pet.No. 1084 of 2001() ------------------------------ CRA.329/2000 of ADDL. SESSIONS COURT, ALAPPUZHA CC.741/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): --------------------- N.M.PADMANABHAN, AGED 68, NARANATHU HOUSE, VALAMANGALAM NORTH P.O., THURAVOOR BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- 1. N.K.RAMAKRISHNAN, MATHATHARA, PADINJARE MANAKKEDAM, PALLITHODE P.O., CHERTHALA. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. ADV. SRI.C.K.SAJEEV FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/02/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.1084/2001 -------------------- Dated this the11th day of February, 2009 ORDER The accused in C.C.No.741/97 on the files of the Judicial Magistrate of First Class-I Cherthala, who is convicted and sentenced for an offence punishable under Section 138 of the Negotiable Instruments Act, is the petitioner in this Revision Petition. The complainant contended that the accused had purchased trees from him for a value of Rs.14,410/- and issued Ext.P1 cheque in this regard. But the cheque was dishonoured for want of sufficient funds. In spite of notice, the amount was not paid and hence the complaint is lodged. 2. The trial Court considered the evidence in detail and also considered the testimony of DWs1 and 2 who were examined to show that the accused was not in a position to remove the trees, stated to be sold by the complainant to the accused because they had already been sold to DW1. The trial Court disbelieved the evidence tendered in this regard by DWs1 and 2 and Crl.R.P.1084/2001 2 proceeded to find that the accused had committed the offence under Section 138 of the Negotiable Instruments Act. On re-appreciation of the evidence, the appellate Court affirmed the same. 3. Learned counsel for the petitioner submitted that the trial Court had committed an error on a crucial aspect. He referred to the fact that the accused had filed an application for examining himself as a witness, but the same was dismissed on 4.11.2000, on the ground that the petition for re-opening of the evidence was not filed. This aspect was not correctly considered by the lower appellate Court also. 4. I have perused the records and I find that the learned Magistrate had dismissed the application filed by the accused under Section 315 of the Cr.P.C, for examining himself as a witness, on the ground that the evidence had already been closed and the petition for re- opening the same was not filed. The view taken in this regard by the learned Magistrate does not seem to be correct. But I take note of the fact that substantial prejudice has not been caused to the accused, because Crl.R.P.1084/2001 3 he had examined DWs1 and 2. Moreover, he had earlier expressed willingness to pay the amount. Even otherwise it cannot be said that the cheque was not supported by consideration, at best the stand taken by the accused can be one of frustration of contract. This may not be an adequate defence in a prosecution under Section 138 of the Act. 5. For all these reasons, I am of the view that the conviction of the accused under Section 138 of the Act does not warrant interference by this Court. 6. As regards the sentence, it is seen that the trial Court has imposed a sentence of three months' simple imprisonment which was affirmed by the lower appellate Court. In my view, the interest of justice would be met, if the accused is directed to pay a fine of Rs.17,000/-. Learned counsel for the petitioner submits that an amount of Rs.10,000/- has already been paid pursuant to the order passed by this Court. The balance fine amount shall be remitted within one month from today. Crl.R.P.1084/2001 4 7. In the result, the Criminal Revision Petition is allowed in part. The conviction of the accused under Section 138 of the Act is upheld. Sentence is modified in the following manner. 8. Accused is sentenced to undergo simple imprisonment till the rising of the Court. He shall also pay a fine amount of Rs.17,000/-. If any amount has been paid pursuant to the orders passed by this Court, the balance amount payable as fine shall be deposited before the Court, within a period of two months from today. On such deposit, a total amount of Rs.16,000/- shall be paid over to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. 9. The accused shall appear before the Court below on 16.3.2009 for suffering the sentence of imprisonment as directed above. V.GIRI, Judge mrcs