IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 367 of 2007(A) ------------------------------ CRA.301/2002 of I ADDL. SESSIONS COURT, KOLLAM CC.228/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------- K. VISWANATHAN, S/O.KRISHNAN NAIR, MELOTH PUTHEN VEEDU, PANAYANCHERRY, ANCHAL. BY ADV. SRI.M.S.RADHAKRISHNAN NAIR RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- 1. C. KUNJAPPY, VENGAVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMAPPU - R2 BY ADV.SRI.ANCHAL C.VIJAYAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 367 OF 2007 ------------------------------------------ Dated this the 21st day of October, 2008 O R D E R Petitioner is the accused in C.C.228 of 1994 on the file of Judicial First Class Magistrate-I, Punalur, who was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.26,000/- under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.Appeal 301 of 2002. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. Case of the revision petitioner is that Courts below did not properly appreciate the evidence and it should have been found that Ext.P1 cheque was not issued by the petitioner and the signature of the petitioner in Ext.P1 cheque was disputed and Ext.D7 report shows that a conclusive opinion was not given on comparison of the signatures, and therefore conviction is not legal. 2. Case of the first respondent in the complaint was that petitioner borrowed Rs.26,000/- and towards its repayment CRRP 367/07 2 issued Ext.P1 cheque drawn in his account maintained in Anchal Service Co-operative Bank and when first respondent presented cheque through State Bank of Travancore, where he has an account, it was dishonoured under Ext.P2 and even though under Ext.P3 notice the amount was claimed, petitioner disputed the liability by sending Ext.P5 reply and did not pay the amount. The evidence of PW1 is that for the purpose of his business petitioner borrowed Rs.26,000/- and when the amount was demanded, Ext.P1 cheque was issued. PW1 was cross-examined by the counsel appearing for the petitioner. Learned Magistrate accepted the evidence of PW1 and did not accept the evidence of DW3, the petitioner. Case of the petitioner as deposed by him was that he lost his passbook and chequebook and it was intimated to the Bank and fresh passbook and chequebook were issued and Ext.P1 cheque is one of the lost cheques. The learned Magistrate on proper appreciation of the evidence of PW2 who was again examined on the side of defence as DW1 and DW2 and DW3 found that Ext.P1 cheque was issued towards repayment of the amount due. Learned Sessions Judge reappreciated the evidence and found that Ext.P1 cheque was issued towards repayment of the amount due. Though reliance was placed on CRRP 367/07 3 Ext.D7 report, based on Ext.D7 report it is not possible to hold that Ext.P1 cheque was not issued by the petitioner. 3. On going through the judgments of the Courts below and the evidence on record, it cannot be said that the view taken by the learned Magistrate and learned Sessions Judge is not a possible and reasonable view that could be taken on the evidence. Evidence establish that Ext.P1 cheque was issued by the petitioner towards repayment of the amount due and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 4. Then the question is on the sentence. Learned Magistrate sentenced the petitioner to imprisonment till rising of Court, in addition to a compensation of Rs.26,000/-, which was confirmed by the learned Sessions Judge. Interest of justice will be met if the sentence is modified to imprisonment till rising of Court and a fine of Rs.26,000/- and in default simple imprisonment for three months. Revision is therefore allowed. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. CRRP 367/07 4 Sentence is modified to imprisonment till rising of Court and a fine of Rs.26,000/- to be paid within two months from today and in default simple imprisonment for three months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before Judicial First Class Magistrate, Punalur on 23.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-