IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 3217 of 2008() ------------------------------------------- CRA. NO.252/2006 OF ADDITIONAL SESSIONS COURT(ADHOC-II) KALPETTA. S.T. 1075/2005 OF JUDICIAL MAGISTRATE OF IST CLASS I. SULTHAN BATHERY. ....... REVN. PETITIONER: APPELLANT/ACCUSED ---------------------------- MADHU SEBASTIAN, AGED 33, S/O.SEBASTIAN, PAZHAYAPURAYIL VEEDU, MOOKUTHIKUNNU NOOLPUZHA, BATHERY. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA ERNAKULAM. 2. K.P.JAMES, S/O.POULOSE, KANJIRAMKOLOTH VEEDU, CHANNALI, PURAKKADI AMSOM, MEENANGADI. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3217 OF 2008 ............................................ DATED THIS THE 19th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for an offence under Section 138 of Negotiable Instruments Act(in short, `N.I Act'). Second respondent is the complainant. Case of first respondent is that towards the discharge of the existing liability of Rs.3,50,000/-, petitioner issued Ext.P2 cheque drawn in his account maintained in Sultan Bathery Branch of Catholic Syrian Bank on 20.1.2005 and when the cheque was presented through the account of first respondent maintained in Kozhikode Branch of Syndicate Bank, it was dishonoured for want of sufficient funds and first respondent sent Ext.P4(a) notice demanding the amount covered by the cheque which served on the petitioner under Ext.P4 and petitioner did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. 2. Learned Magistrate, on the evidence of PW1, the brother of petitioner and Exts.P1 to P6 and D1 to D3 found that Ext.P2 cheque was issued towards discharge of the existing liability and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities and convicted petitioner for the offence under Section 138 of N.I.Act. He was sentenced to CRRP 3217/2008 2 undergo simple imprisonment for six months and a compensation of Rs.3,50,000/- under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Kalpetta in Crl.A.252 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. The argument of learned counsel is that courts below were not justified in accepting the evidence of PW1 and rejecting the evidence of DW1 and it should have been found that Ext.P12 cheque was not issued towards discharge of the any liability and therefore the conviction is not sustainable. Learned counsel also argued that in any case, sentence awarded is excessive and sentence may be converted into fine and time may be granted to pay the fine. 4. Ext.P2 cheque was admittedly issued in the account maintained by the petitioner in Catholic Syrian Bank. Though petitioner contended that the cheque was not issued towards discharge of an existing liability, learned Magistrate and learned Sessions Judge, on appreciation of evidence found that the issuance of cheque was not disputed and evidence of PW1 establish that there was an agreement between petitioner and first respondent in respect of which O.S.95 of 2004 was instituted which was settled for CRRP 3217/2008 3 Rs.7,50,000/- and Rs.4,00,000/- was paid in cash and for the balance of Rs.3,50,000/-, Ext.P2 cheque was issued. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. I do not find any reason to interfere with the finding of fact that Ext.P2 cheque was issued towards the payment of Rs.3,50,000/-, which was the balance amount due under the settlement arrived at for settlement of the dispute involved in O.S.95 of 2004. Evidence also establish that cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities. Therefore conviction of petitioner for the offences under Section 138 of N.I.Act is perfectly correct. 5. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioner to simple imprisonment for six months in addition to a compensation of Rs.3,50,000/-. So long as compensation payable to first respondent is not to be interfered, it is not necessary to issue notice to first respondent. Therefore notice to first respondent is dispensed with. 6. Section 138 of N.I Act provides for a sentence of imprisonment for two years and fine, which may extend to double the amount covered by the cheque. It is not mandatory that in all cases, substantive sentence is to be awarded. In the circumstances of the case, interest of justice will be met, if the sentence is modified to CRRP 3217/2008 4 imprisonment till rising of court and a fine of Rs.3,70,000/-. On realisation of the fine amount, Rs.3,60,000/- is to be paid as compensation to first respondent. 7. Revision is therefore allowed in part. While confirming the conviction for offence under Section 138 of N.I.Act, the sentence is modified to imprisonment till rising of court and a fine of Rs.3,70,000/- and in default, simple imprisonment for two months. On realisation of the fine amount, Rs.3,60,000/- is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate on 16.12.2008. If petitioner had deposited any amount before learned Magistrate, he need deposit only the balance amount. M.SASIDHARAN NAMBIAR, JUDGE lgk/-