IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 1119 of 2007() ------------------------------ CRA.373/2005 of ADDL.SESSIONS COURT, PATHANAMTHITTA ST.360/2003 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- 1. P.D.RAJAPPAN PILLAI, S/O.MADHAVAN PILLAI, SREEVILASOM, S.R.A.134, ELIPADU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. N.R.VALSALADEVI PILLAI, W/O. RAJAPPAN PILLAI, SREEVILASOM, S.R.A.134, ELIPADU, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RSPONDENTS:COMPLAINANT/STATE: ------------------------------------------------------------------------------------ 1. M/S.ESS ENN BANKERS, THAVALATHIL BUILDING, PATHANAMTHITTA IS REPRESENTED BY ITS PARTNER V.K.VARADARAJAN, MANAPPALLIL RAMADOM, MALLASSERY, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.M.KAMAPPU - R2 ADV. SRI.C.S.MANILAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1119 OF 2007 ............................................ DATED THIS THE 21st DAY OF NOVEMBER, 2008 ORDER Revision petitioners are challenging the conviction and sentence in S.T.360 of 2003 on the file of Chief Judicial Magistrate, Pathanamthitta as confirmed by Sessions Judge, Pathanamthitta in Crl.A.373 of 2005. First respondent is a partnership firm represented by its partner, who was examined as PW1. First petitioner is the husband and second petitioner, his wife. Case of first respondent was that revision petitioners borrowed money and towards its repayment, issued Ext.P2 cheque drawn in their account maintained in Vattiyoorkavu Branch of State Bank of Travancore for Rs.22,37,500/- and when the cheque was presented, it was dishonoured as the account was closed on 27.1.2003, and in spite of service of notice demanding the amount covered by the dishonoured cheque, it was not paid and petitioners thereby committed offence under Section 138 of N.I.Act. Petitioners pleaded not guilty. The partner of first respondent firm was examined as PW1 and Exts.P1 to P8 were marked. On the side of defence, first petitioner was examined as DW1 and Exts.D1 to D4 were CRRP 1119/2007 2 marked. 2. Learned Magistrate, on the evidence found petitioners guilty. They were convicted and sentenced to simple imprisonment for three months and a compensation of Rs.11,25,000/- each for the offence under Section 138 of N.I.Act. Petitioners challenged the conviction before Sessions Court, Pathanamthitta in Crl.A.373 of 2005. 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 petitioners and first respondent were heard. The argument of learned counsel appearing for petitioners is that petitioners did not borrow any amount from first respondent and Ext.P1 cheque was not issued towards discharge of any liability and instead, Purushothaman Pillai, an Ex-MLA, the Uncle of petitioners, borrowed money and towards security, petitioners issued signed blank cheques and title deed of their property at Thiruvananthapuram and signed blank stamp papers and Ext.P2 cheque is created making use of one such cheque. Learned counsel also argued that evidence of DW1 establish the defence case and first respondent failed to CRRP 1119/2007 3 establish that Ext.P2 cheque was issued towards discharge of any legally recoverable debt and so the conviction is not sustainable. It is also submitted that in any case, sentence is to be modified. 4. Learned counsel appearing for first respondent argued that both the courts below properly appreciated the evidence and there is no reason to interfere with the conviction and sentence. 5. Learned Magistrate appreciated the evidence of first respondent as PW1 and first petitioner as DW1. On such appreciation of evidence, it was found that Ext.P2 cheque was issued towards repayment of the loan obtained by petitioners and was not issued as a blank signed cheque for a loan obtained by Purushothaman Pillai, the Uncle of petitioners. The question is whether this factual finding is in accordance with the evidence on record. 6. Though learned counsel vehemently argued that the amount claimed by first respondent is inclusive of exorbitant interest, which is not enforceable and cheque was issued towards the security of the loan obtained by their Uncle, there is no supporting evidence. The interested version of DW1, on CRRP 1119/2007 4 proper appreciation was rejected by the courts below. On going through the evidence, I cannot agree with the submission that appreciation of evidence was perverse or not proper. On the other hand, evidence of PW1 establishes that Ext.P2 cheque was issued towards repayment of the loan obtained by petitioners. In such circumstances, finding of courts below that Ext.P2 cheque was issued towards discharge of a legally recoverable debt is perfectly in order. 7. Though learned counsel argued that Ext.P2 cheque was issued subsequent to the closing of account and therefore no offence under Section 138 of N.I.Act is attracted, it is the specific case of first respondent that cheque was issued post dated. Evidence of PW1 prove that Ext.P1 cheque was issued much prior to the closing of the account. Petitioners have no case that cheque was issued to first respondent after closure of the account and the only contention was that it was issued as security and as a blank cheque. There was no case that cheque was issued subsequent to 27.1.2003, the date on which account was closed. When cheque was issued an account was subsisting and subsequently the account was closed before the presentation of the cheque for encashment will not enable the petitioners to CRRP 1119/2007 5 contend that offence under Section 138 of N.I.Act is not attracted. If account was closed subsequent to issuance of cheque if other conditions are established offence under Section 138 of N.I.Act would definitely apply. Therefore on that ground also, conviction cannot be interfered. 8. Learned counsel also argued that before the appellate court, a petition was filed for permission to examine Purushothaman Pillai, Uncle of petitioners and it was wrongly rejected and therefore an opportunity is to be granted. I do not find that in the nature of the evidence on record, even if Purushothaman Pillai was examined, it would have helped petitioners, as there is no evidence to prove that petitioners were sureties to any loan obtained by Purushothaman Pialli. In such circumstances, on that ground also there is no reason to interfere with the conviction. 9. Evidence establish that Ext.P2 cheque was issued towards discharge of a legally recoverable debt. It is also proved that the cheque was dishonoured, as account was closed and when the account was closed, there was no amount to honour the cheque. It is also proved that first respondent has complied with all the statutory formalities provided under Section 138 and CRRP 1119/2007 6 142 of N.I.Act. Conviction of petitioners for the offence under Section 138 of N.I.Act is perfectly legal. 10. Then the only question is regarding sentence. Interest of justice will be met if the substantive sentence is reduced to imprisonment till rising of court in addition to a fine with a direction to pay the compensation to first respondent out of the fine realised. 11. Revision petition is partly allowed. Conviction of petitioners for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitiones are sentenced to imprisonment till rising of court and a fine of Rs.11,30,000/- each and in default, simple imprisonment for two months. On realisation of fine, Rs.22,50,000/- is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioners are granted two months time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-