IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Crl.Rev.Pet.No. 1421 of 2003 ---------------------------------------------- CRA.58/2001 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.358/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: GEORGE PHILIP, S/O. PHILIP, ELANJIKKAL HOUSE, KALLINGALPADAM, PANNIYANKARA POST, KANNAMBRA, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: 1. P.D.VARGHESE, S/O. DEVASSI, PAROKKARAN HOUSE, KALLINGALPADAM, PANNIYANKARA POST, KANNAMBRA, ALATHUR TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM, COCHIN 31. BY ADV. SRI.P.R.VENKETESH FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL. 6124/2003 IN CRRP 1421/2003 DISMISSED 23.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1421 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.358/1998 on the file of Judicial First Class Magistrate's Court, Alathur, was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. He challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.No. 58/2001. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction, but modified the sentence to simple imprisonment for three months and a compensation of Rs.1,30,000/-. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that learned Magistrate and learned Additional Sessions Judge did not properly CRRP 1421/03 2 appreciate the evidence and should have allowed to re-call PW1 for further cross-examination, in the light of Exhibit D2 and on a proper appreciation of evidence, it should have been found that Exhibit P1 cheque was not issued towards repayment of any debt or liability, instead, it was the cheque entrusted by the petitioner as security, which was misused by the first respondent. 4. Learned counsel appearing for the first respondent pointed out that the very defence raised by the petitioner cannot be believed and courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction or the sentence. 5. First respondent lodged the complaint alleging that he deposited Rs.85,500/- with the petitioner on his promise to pay interest at 28% per annum and petitioner paid only Rs.10,000/- towards interest and when the principal amount with interest was demanded, petitioner issued Exhibit P1 CRRP 1421/03 3 cheque, drawn in his account maintained at Kannambra Branch of Corporation Bank. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Exhibit P2. By Exhibit P3 notice, served on the petitioner under Exhibit P4, first respondent demanded the amount covered by the dishonoured cheque. Petitioner did not pay the amount and instead, sent Exhibit P5 reply disputing the liability and thereby committed the offence. 6. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exhibits P1 to P7 were marked. Petitioner was examined as DW1 and Exhibits D1 and D2 were marked. 7. Learned Magistrate appreciated the evidence of PW1 and DW1 and accepted the evidence of PW1 and disbelieved the case of the petitioner and found that Exhibit P1 cheque was issued towards repayment of the amount deposited with interest and first respondent had complied with all the statutory CRRP 1421/03 4 formalities provided under Section 138 and 142 of Negotiable Instruments Act and convicted him. Argument of the learned counsel is that evidence was not properly appreciated. 8. When first respondent was examined as PW1, he deposed that he deposited Rs.35,000/- on 25.1.1996 and Rs.50,000/- on 5.5.1996 and there was an agreement to pay interest at 28% per annum and out of the interest payable, petitioner paid only Rs.10,000/-, for which a receipt was issued. The balance interest was not paid. Ultimately, when the principal amount with interest was demanded, Exhibit P1 cheque was issued. When PW1 was cross- examined, petitioner had no case that he had received Rs.85,000/- or repaid the same. But, as DW1, in chief examination itself, petitioner admitted that he had received Rs.85,000/- on two occasions, as stated by PW1 and thereby corroborated the evidence of PW1. According to the petitioner, that amount was repaid and when the CRRP 1421/03 5 amount was rightly received by the petitioner, he had entrusted a cheque as security to the first respondent and at the time of payment of that amount, the cheque was returned with an endorsement on the reverse side of the cheque and thereby, that transaction was closed. DW1 would also depose that petitioner had received Rs.10,000/- separately and with interest, that amount was also repaid and a receipt for Rs.10,000/- was issued by the first respondent. Exhibit D2 was pressed into service contending that it was the cheque, which was originally issued as security and was returned when payment was made. Argument of the learned counsel is that learned Magistrate should have allowed the application to re-call PW1 so as to cross-examine him further with reference to Exhibit D2. 9. On going through the evidence, I find absolutely no reason to allow the application to recall PW1, which was dismissed by the learned Magistrate. When PW1 was cross-examined, petitioner CRRP 1421/03 6 had no case that he had received Rs.85,000/- or that it was repaid. Exhibit D2 was in the possession of the petitioner. It should have been confronted to PW1 if, it was, in fact, a cheque returned by the first respondent with his endorsement. It is impossible to believe the evidence of DW1. Even if petitioner had repaid the amount obtained earlier, when the cheque, which was entrusted as security, was returned, there was absolutely no need to sign on the reverse side of the cheque by the first respondent. It is pertinent to note that even, according to the petitioner, when Rs.10,000/- was paid by him to the first respondent, he obtained a receipt. In such circumstances, when Rs.85,000/-, which was admittedly received by the petitioner, was repaid, he will not fail to demand a receipt. If the only evidence to establish the transaction of Rs.85,000/- is the cheque entrusted by the petitioner to the first respondent as security, CRRP 1421/03 7 once it is returned, there is no necessity for the first respondent to sign on the reverse side of that cheque, as, by return of the cheque, the entire transaction is terminated. In such circumstances, I have no hesitation to disbelieve the case of the petitioner. When the entire evidence is appreciated in the proper perspective, the view taken by the learned Additional Sessions Judge is the only possible and plausible view that could be taken on the evidence. In such circumstances, I do not find any reason to interfere with the findings of the learned Magistrate, as confirmed by the learned Additional Sessions Judge. The conviction is legal and proper. 10. Then the only question is regarding the sentence. Learned Additional Sessions Judge modified the substantive sentence from simple imprisonment for six months to simple imprisonment for three months and a compensation of Rs.1,30,000/-, the amount covered by the dishonored CRRP 1421/03 8 cheque. Learned counsel submitted that consequent to the order passed by this Court while suspending the sentence, petitioner deposited the entire amount covered by the dishonoured cheque before the learned Magistrate and in such circumstances, the sentence be modified. 11. The cheque was issued on 15.4.1998, for repayment of the amount due. Petitioner deposited the amount covered by the dishonoured cheque only after the unsuccessful appeal, as directed by this Court. Hence, petitioner is not entitled to contend that sentence is to be modified. But, considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of court and payment of adequate compensation. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. In supersession of the sentence awarded by the learned CRRP 1421/03 9 Additional Sessions Judge, petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.1,35,000/- and in default, simple imprisonment for one month. If petitioner has deposited any amount before the learned Magistrate, he need deposit only the balance amount. Petitioner is directed to appear before Judicial First Class Magistrate, Alathur on 31.08.2010. The Magistrate is directed to execute the sentence. If petitioner has deposited any amount before the learned Magistrate, first respondent is entitled to receive the same as compensation. 23rd July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1421/03 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1421 of 2003 -------------------------- ORDER 23rd July, 2010