IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 3361 of 2008() ------------------------------ CRA.306/2007 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.106/2004 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.C.SASI, AGED 46 YEARS, S/O.MADAVAN, THENGUMMODIYIL EZHIKAD COLONY, KURICHIMUTTAM, PATHANAMTHITTA. BY ADV. SRI.GEORGE MATHEW SRI.BIJILY JOSEPH RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. N.K.OMANA, AGED 42 YEARS, NELLIKUNATH HOUSE, KURICHINUTTAM, PATHANAMTHITTA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3361 OF 2008 ............................................ DATED THIS THE 21ST DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in C.C.106 of 2004 on the file of Chief Judicial Magistrate, Pathanamthitta. First respondent is the complainant. First respondent lodged the complaint before Chief Judicial Magistrate, contending that petitioner borrowed Rs.9,00,000/- and towards its repayment, issued Ext.P1 cheque drawn in his account and when the cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds and Ext.P4 notice was sent to petitioner in his correct address demanding the amount covered by the dishonoured cheque and it was returned unclaimed and petitioner failed to pay the amount and thereby committed the offence under Section 138 of N.I.Act. Petitioner appeared before learned Magistrate and pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P6 were marked. Petitioner was questioned under Section 313 of Code of Criminal Procedure. Petitioner did not adduce any evidence. 2. Learned Magistrate, on the evidence, found the petitioner guilty. He was sentenced to simple imprisonment for six months and a compensation of Rs.9,00,000/- under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and Crrp 3361/2008 2 sentence before Sessions Court, Pathanamthitta in Crl.A.306 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. The argument of learned counsel is that courts below was not justified in accepting the evidence of PW1 when PW1 was not cross examined by petitioner. It was argued that for the fault of the counsel in not appearing before learned Magistrate, evidence of PW1 should not have been accepted by the courts below, when there is no evidence to prove the capacity of first respondent to pay Rs.9,00,000/-. It was argued that petitioner had filed an application before learned Sessions Judge for permission to adduce evidence including cross examination of PW1 and it should have been granted. Learned counsel finally submitted that petitioner has been in prison after the conviction and before filing of the appeal for a period of 61 days and the subsantive sentence may be reduced to that period. 4. The judgment of learned Magistrate and learned Sessions Judge establish that petitioner did not cross examine PW1. In fact PW1 was examined on 27.7.2006 and on the failure of petitioner to cross examine him case was adjourned to 30.1.2006. Even on that Crrp 3361/2008 3 day, petitioner did not cross examine PW1 and it was recorded `no cross'. Petitioner was examined under Section 313 of Code of Criminal Procedure only on 18.2.2006. At that time, evidence of PW1 was put to the petitioner. Thereafter case was adjourned to 4.3.2006. Even at that stage, petitioner did not file an application to recall PW1 for cross examination. The appeal memorandum which was made available by learned counsel also does not disclose why PW1 was not cross examined. The main grievance was only that petitioner did not get sufficient opportunity to adduce defence evidence. In such circumstances, learned Sessions Judge could not be blamed for not allowing the application to adduce further evidence, including cross examination of PW1, when there is no material to show that petitioner could not avail of the opportunity to appear before learned Magistrate. As the record stands, evidence of PW1 stands unrebutted. Learned Magistrate and learned Sessions Judge accepted the evidence and found that Ext.P1 cheque was issued towards the amount due to first respondent. Evidence also establish that it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and correct. 5. Then the only question is with regard to the sentence. Crrp 3361/2008 4 Though Chief Judicial Magistrate sentenced petitioner to simple imprisonment for six months, in addition to a compensation under Section 357(3) of Code of Criminal Procedure with a default sentence. So long as sentence is not to be varied or modified as against the interest of first respondent, it is not necessary to issue notice to first respondent. Interest of justice will be met, if the substantive sentence is reduced to simple imprisonment for two months. 6. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to simple imprisonment for two months. Compensation awarded is confirmed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-