IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 3441 of 2008() ------------------------------ CRA.313/2007 OF SESSIONS COURT (ADHOC-II) MANJERI. ST.165/2006 of JUDL.FIRST MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------------------- A.P.MAMMAD, S/O.POCKER, MUNNAYIKAD HOUSE, P.O.KARIPPUR, VIA KONDOTTY, MALAPPURAM DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------- 1. K.P.ABDUL AZEEZ, S/O.ABDUL HAMMEED HAJI, P.O.ANAKKAYAM, PANAYI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3441 OF 2008 =========================== Dated this the 22nd day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in S.T.165/2006 on the file of Judicial First Class Magistrate II (Forest Offences), Manjeri. Case of the first respondent was that petitioner approached him for purchase of gold ornaments and gold ornaments was arranged from one Jaffer a friend and he purchased them and then sold to the petitioner for an amount of Rs.2,03,000/- out of which petitioner paid Rs.37,000/- in cash and towards the balance issued Ext.P1 post dated cheque drawn in his account maintained in Manjeri Co-operative Bank. When it was presented for encashment, it was dishonoured for want of sufficient funds. Inspite of notice served on the petitioner, demanding the amount covered by Ext.P1, he did not pay the amount and thereby committed the offence under section 138 of CRRP 3441/2008 2 Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of first respondent as PW1 and Jaffer from whom the gold ornaments were purchased as PW2 and Exts.P1 to P7 and the evidence of the petitioner as DW1 and Ext.D1 advertisement in the newspaper, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.1,66,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.313/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a compensation of Rs.1,66,000/- and in default simple imprisonment for two months. The revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel for CRRP 3441/2008 3 petitioner is that courts below did not properly appreciate the evidence. It was pointed out that the inherent improbability of the case was not properly born in mind while appreciating the evidence. It was also argued that evidence of PW1 was that Ext.P1 cheque was written and brought by the petitioner to the shop of first respondent and when the case is that the cheque was issued towards the balance amount payable for the purchase of gold ornaments, a cheque could not have been written and brought to the shop of PW1 without ascertaining the price of the goods which could be fixed only after purchasing the gold ornaments and therefore evidence of PW1 should have been disbelieved and so the conviction of the petitioner is not sustainable. Learned counsel finally submitted that in any case petitioner may be granted six months time to pay the amount as directed by the Sessions Judge. 4. The evidence of first respondent as PW1 was fully corroborated by the evidence of PW2. Evidence CRRP 3441/2008 4 of Pws.1 and 2 establish that for the purpose of selling the gold ornaments to the petitioner, on his request, gold ornaments of PW2 was purchased by PW1 and was then sold to the petitioner. Evidence of Pws.1 and 2 also establish that towards the value of the gold ornaments Rs.37,000/- was paid by the petitioner and for the balance Ext.P1 cheque was issued. Though PW1 deposed that Ext.P1 cheque was not written in his presence and it was written and brought to the shop, the improbability canvassed by the counsel was cleared by the further evidence of PW1 on reexamination stating that after fixing the price to be paid, petitioner had brought the cheque written and then signed in the presence. I find no reason to disbelieve the evidence of PW1 corroborated by PW2 and accepted by the court below. Though petitioner has a case that along with some other cheques Ext.P1 cheque was also lost and Ext.D1 advertisement was pressed into service, courts below rightly disbelieved Ext.D1 as the publication was subsequent to the CRRP 3441/2008 5 dishonour of Ext.P1 cheque and also because only the number of the dishonoured cheque was mentioned therein eventhough case of the petitioner is that several cheques were lost. In such circumstance, on appreciating the evidence, I find no reason to differ with the findings of the courts below. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is therefore perfectly legal. 5. Then the only question is with regard to the sentence. The substantive sentence was reduced by the Sessions Judge to imprisonment till rising of the court. The compensation was confirmed. But in view of the decision of the Apex Court that when compensation is awarded under section 357(3) of the Code of Criminal Procedure, a default sentence CRRP 3441/2008 6 cannot be awarded the sentence is not legal to that extent. That defect could be cured if the sentence is modified to a fine with a direction to pay the compensation to first respondent under sub section (1) of Section 357 of the Code of Criminal Procedure. Criminal Revision Petition is allowed in part. The conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.1,66,000/- to be paid within six months from today and in default simple imprisonment for two months. On realisation of the fine, it shall be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the Magistrate on the expiry of six months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP 3441/2008 7 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006