IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 689 of 2004(A) ------------------------------ CRA.549/2002 of SESSIONS COURT, KOTTAYAM CC.264/2001 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT-ACCUSED -------------------------------------- C.V.THANKACHAN ILLIDEAPARAMBIL HOUSE, NEAR KOOVAKA C.M.S. CHURCH, MANIKANDAPURAM, PONGANTHANM ROAD, VAKATHANM P.O., KOTTAYAM DIST. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENTS- STATE AND COMPLAINANTS -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. P.C.ZACHARIAH, PROPRIETOR, PALLATHATTU FINANCIERS, PUTHUPPALLY, PALLATHATTU HOUSE, PUTHUPPALLY KARA, PUTHUPPALLY P.O., KOTTAYAM DIST. ADV. SRI.P.RAVINDRA BABU FOR R2 R1 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.689 OF 2004 --------------------------------------------- Dated 10th August, 2010 O R D E R Petitioner, the accused in C.C.264/2001 on the file of Chief Judicial Magistrate, Kottayam was convicted and sentenced to a fine of Rs.17,000/- and in default simple imprisonment for two months with a direction to pay Rs.16,000/-, out of the fine amount as compensation to the second respondent/complainant under Section 357(1) of Code of Criminal Procedure for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions court, Kottayam in Crl.A.549/2002. Learned Sessions Judge on re-appreciation of the evidence confirmed CRRP 689/04 2 the conviction and modified the sentence by reducing the fine to Rs.15,000/- directing to pay Rs.14,000/-, out of the fine, so realised, as compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that courts below did not appreciate the evidence in the proper perspective and the presumption provided under Section 139 of Negotiable Instruments Act should not have been drawn. It is argued that petitioner did not admit issuance of the cheque and contended that cheque was issued as a blank cheque and that too as security and there is no evidence to prove that petitioner issued Ext.P1 cheque towards discharge of any debt or liability and CRRP 689/04 3 therefore, the conviction is bad. Learned counsel also submitted that in any case, sentence may be modified. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1, the second respondent and DW1 the petitioner and found that Ext.P1 cheque was issued towards discharge of the amount borrowed and it was dishonoured for want of sufficient funds and in spite of notice petitioner did not pay the amount. Fact that petitioner received notice sent under Section 138(b) of Negotiable Instruments Act, demanding the amount covered by Ext.P1 cheque and he did not send any reply and did not pay it is not disputed. Though it was argued that second respondent was in the habit of granting loan on obtaining blank cheque and Ext.P1 cheque was issued as a blank CRRP 689/04 4 cheque, on the evidence I cannot accept the submission. When second respondent was examined as PW1 what was stated was that a blank cheque was entrusted with the second respondent as security for the loan of Rs.15,000/- and subsequently interest was paid and the second respondent adding the figure Rs.18,270/- presented the cheque and when it was dishonoured the complaint was falsely foisted. But the evidence of petitioner as Dw1 was that when second respondent asked to issue a cheque for Rs.18,270/- inclusive of principal amount and the interest payable, he had written, signed and handed over the cheque. Therefore, case of issuance of the blank cheque was disproved by the evidence of DW1 himself. When issuance of the cheque is admitted, the presumption under Section 139 of Negotiable CRRP 689/04 5 Instruments Act is definitely to be drawn. True, the presumption is rebuttable. But apart from contending that he has paid the amount borrowed, no satisfactory evidence was adduced to prove the payment so made. Even according to the petitioner did not receive a receipt for payment of the amount. In such circumstances, courts below on the evidence rightly found that Ext.P1 cheque was issued towards discharge of liability. As second respondent has complied with all the statutory formalities, when the cheque was dishonoured for want of sufficient funds, 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 Chief Judicial Magistrate sentenced the petitioner only to fine. Learned CRRP 689/04 6 Sessions Judge reduced the fine to Rs.15,000/-, taking into consideration the admission made by the second respondent that after lodging of the complaint Rs.4,500/- was received by the second respondent. In such circumstances, there is no reason to interfere with the sentence also. Revision fails and is dismissed. Chief Judicial Magistrate, Kottayam is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.