IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 984 of 2008() ----------------------------- CRA.239/2000 of I ADDL. SESSIONS COURT, KOLLAM CC.222/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------- N. RAJAPPAN CHETTIYAR, AGED 37 YEARS, S/O. GANAPATHI CHETTIYAR, PARAKKULATHU THODIYIL VEEDU, PARAKKULAM, NEDUNGOLAM, PARAVUR,KOLLAM DIST BY ADV. SRI.V.VENUGOPALAN NAIR SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAJENDRAN PILLAI, SREEKRISHNA VILASOM, KOONAYIL, PARAVUR P.O., KOLLAM DISTRICT. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 984 OF 2008 =========================== Dated this the 30th day of October,2008 ORDER Petitioner is the accused and second respondent the complainant in C.C.222/1997 on the file of Judicial First Class Magistrate,Paravoor. Second respondent lodged the complaint contending that on 30.11.1996 petitioner borrowed Rs.35,000/- and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Paravur branch of S.N.V.R.C. Bank and when the cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds and second respondent sent Ext.P4 notice in the correct address of the petitioner demanding the amount but it was not received by the petitioner and was returned unclaimed and petitioner did not pay the amount and thereby committed offence under section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence. Petitioner CRRP 984/2008 2 appeared before the Magistrate and pleaded not guilty. Second respondent was examined as PW1 and manager of the bank was examined as PW2 and Exts.P1 to P6 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.35,000/- under section 357 (3) of the Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.239/2000. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard and the records called for from the learned Magistrate were perused. 3. The argument of the learned counsel appearing for petitioner is that Ext.P1 cheque was not issued in the account maintained by the petitioner and therefore no offence under section CRRP 984/2008 3 138 of N.I. Act was committed. Learned counsel argued that evidence of PW2 establish that the account was not opened by the petitioner and there is a correction in the account number in Ext.P1 and therefore courts below should have found petitioner not guilty. Learned counsel also argued that petitioner is only a driver and there is no evidence to prove that Ext.P1 cheque was issued towards repayment of any legally recoverable debt and therefore the conviction is not sustainable. Learned counsel finally submitted that in any case the sentence awarded is excessive and may be modified. 4. Though learned counsel vehemently argued that Ext.P1 cheque was not issued in the account maintained by petitioner, on going through the records including the evidence of PW2 relied upon by the learned counsel, I cannot agree with the submission. Ext.P6 is the ledger extract of the account No.11166. Ext.P6 establishes that cheque leaf 6221 was encashed in that account on CRRP 984/2008 4 29.11.1994. Ext.P1 cheque relates to the same cheque book its number being 6226. Though it was argued that there is correction in the account number seen in Ext.P1 what is relied upon is the third figure 1 which is seen darkened. Ext.P1 shows that the cheque relates to account No.11166, which is the account evidenced by Ext.P6. Though learned counsel argued that petitioner did not maintain that account, it is seen that when second respondent was examined as PW1 there was no case for the petitioner that he is not having an account in that Bank or that Ext.P1 cheque does not relate to his account. On the other hand, what was suggested to PW1 was that he had borrowed Rs.20,000/- and towards its security he issued a blank cheque and second respondent converted that cheque to Ext.P1 cheque for Rs.35,000/- and he had repaid Rs.15,000/-. There is absolutely no evidence to prove the alleged discharge as claimed by the petitioner or that the amount borrowed was not Rs.35,000/- but Rs.20,000/-. Learned CRRP 984/2008 5 Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Ext.P1 cheque was issued towards repayment of Rs.35,000/- which was borrowed by the petitioner from second respondent. Evidence also establish that Ext.P1 cheque was drawn in the account maintained by the petitioner and it was dishonoured for want of sufficient funds. Ext.P4 notice was sent to the correct address of the petitioner. It was returned unclaimed after serving intimation . In such circumstance, findings of the courts below that petitioner committed the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is with regard to the sentence. So long as the sentence is not varied or modified as against the interest of the second respondent, it is not necessary to issue notice to second respondent. Considering the nature of the offence and the facts as disclosed in the evidence, interest of justice will be met if CRRP 984/2008 6 the sentence is modified to imprisonment till rising of the court and fine. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to imprisonment till rising of the court and a fine of Rs.36,000/- and in default simple imprisonment for two months. On realisation of the fine, Rs.35,000/- to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the learned Magistrate on 31.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006