IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3216 of 2008() ------------------------------ CRA.10/2007 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT II, PATHANAMTHITTA ST.745/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... CRIMINAL REVISION PETITIONER(S): APPELLANT:ACCUSED: ------------------------------------------------------------------------------------------- INDIRA, EDAYILAYYATHU HOUSE, M.G.ROAD, PANNIVIZHA, ADOOR. BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWARLAL RESPONDENT(S): COMPLAINANTS/RESPONDENTS AND STATE: ----------------------------------------------------------------------------------------------- 1. M.NAZEEMA BEEVI, HOUSE NO.1, ZAKKIR HUSSAIN NAGAR, KANNAMKODE, ADOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,HIGH COURT BUILDING, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3216 OF 2008 ............................................ DATED THIS THE 10th DAY OF NOVEMBER, 2008 ORDER Revision Petitioner is the accused and first respondent, the complainant in S.T.745 of 2004 on the file of Judicial First Class Magistrate, Adoor. Case of first respondent was that petitioner borrowed Rs.2,25,000/- for the business needs of her son and when the amount was demanded, she issued Ext.P1 cheque dated 12.3.2004 drawn in her account in Adoor Pannivizha Service Co-operative Bank. First respondent presented Ext.P1 for encashment through Adoor Branch of Catholic Syrian Bank. It was dishonoured under Ext.P2 for want of sufficient funds and under Ext.P3, it was intimated to first respondent. First respondent sent Ext.P4 notice demanding the amount covered by Ext.P1. It was served on the petitioner under Ext.P6. Petitioner did not pay the same and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. First respondent examined herself as PW1 and a witness as PW2. Exts.P1 to P6 were marked. On the side of DW1, C.I of Police and DW2, her son, were examined and Ext.D1 reply notice to Ext.P4 notice was marked. 3. Learned Magistrate on the evidence, disbelieved the case of petitioner that Ext.P1 cheque was issued as a blank cheque and CRRP 3216/2008 2 that too, for the alleged transaction and found that Ext.P1 cheque was issued towards payment of Rs.2,23,000/- borrowed. It was also found that the cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. Petitioner was convicted and sentenced to imprisonment till rising of court and a compensation of Rs.2,25,000/- and in default, simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.10 of 2007. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 4. Learned counsel appearing for revision petitioner was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and should have accepted the evidence of DW2 and found that Ext.P1 cheque was not issued towards the repayment of loan. Learned counsel also argued that evidence of DW1 is not fatal to the defence and the failure to register a complaint filed by first respondent is not a ground to disbelieve the evidence of PW2 and if the then C.I was examined, he would have deposed that a complaint as claimed by DW2 was received and an opportunity is to be granted to examine the then C.I. Learned counsel finally argued that in any case considering the nature of offence and CRRP 3216/2008 3 his financial conditions, petitioner may be granted six months time to pay the fine. 5. On hearing the learned counsel and going through the judgments of courts below, I do not find any reason to interfere with the conviction. Though petitioner contended that a complaint was lodged before police and DW1 was examined to prove the same, evidence of DW1, C.I establish that if any such complaint was filed, it would have been registered and the petition register would definitely reflect the same and there is no such entry in the petition register starting from January 2003 to December 2003. Though learned counsel argued that an opportunity is to be granted to examine the then C.I, when there is no entry in the petition register, no purpose will be served by examining the C.I as he cannot say from memory whether any complaint or petition was received as claimed, in 2003. The evidence of DW2, the son of petitioner was elaborately considered by learned Magistrate as well as learned Sessions Judge. It cannot be said that appreciation of evidence was perverse. On going through the evidence of Dws 1 and 2, it is absolutely clear that petitioner borrowed Rs.2,23,000/- and towards its repayment, issued Ext.P1 cheque. Evidence also establish that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. CRRP 3216/2008 4 Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal and proper. 6. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioner only to imprisonment till rising of court and a compensation of Rs.2,25,000/- and in default, simple imprisonment for three months. Learned counsel submitted that petitioner is aged 70 years and in such circumstances, imprisonment till rising of court may be avoided. So long as sentence is not to be modified or varied as against the interest of first respondent/complainant, it is not necessary to issue notice to her. Interest of justice will be met, if the sentence is modified to fine. 7. Revision petition is allowed in part. Conviction of the petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitioner is sentenced to a fine of Rs. 2,30,000/- and in default, simple imprisonment for three months. On realisation of fine, Rs.2,25,000/- is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted three months time from today to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-