IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.Rev.Pet.No. 3086 of 2003() ------------------------------------------ CRA.233/2002 of SESSIONS COURT, KOTTAYAM CC.500/1998 of JUDL. MAGISTRATE OF FIRST CLASS- II, (MOBILE) CHENGANACHERRY. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- K.CHELLAPPAN, LATHA NIVAS, CHENGARA MALA, VAIPUR PO. BY ADV. SRI.JOHN VARGHESE RESPONDENT(S): RESPONDENT/STATE & COMPLAINANT ----------------------------------------------------------------------------------- 1. KERALA STATE, REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. 2. K.V.VARGHESE, KARIMPIL VEEDU, NALUKODI P.O., PAIPPADU, CHANGANACHERRY. R1 BY PUBLIC PROSECUTOR SRI.ALEX M.THOMAS R2 BY ADV. SRI.JOMY GEORGE, THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.3086 of 2003 --------------------------------- Dated this the 24th day of August 2011 O R D E R The revision petitioner was found guilty of the offence punishable under Sec.138 of the N.I.Act. He was sentenced by the learned Magistrate to undergo S.I. for six months. In the appeal, the conviction was confirmed but the sentence was modified to S.I. for two months and to pay Rs.90,000/- as compensation to be paid to the complainant. 2. The case of the complainant is that the accused had borrowed Rs.90,000/- and to discharge that debt Ext.P1 cheque was issued which on presentment was dishonoured due to insufficiency of fund. On receipt of the intimation from the bank, statutory notice was sent. It was acknowledged by the accused to which a reply was sent by the accused denying the liability. As the amount was not paid, this complaint was filed. Crl.R.P. No.3086 of 2003 -: 2 :- 3. The complainant got himself examined as PW1 and Exts.P1 to P8 were marked. The accused and two other witnesses were examined as DWs.1, 2 and 3 and Exts.D1 to D3 were marked. 4. The learned Magistrate after analysing the evidence found that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt. That court found that all the statutory requirements were complied with and hence the accused was convicted. The learned Sessions Judge made a reappraisal of the evidence and concurred with the finding entered by the learned Magistrate. 5. The learned counsel for the revision petitioner would submit that a reading of the complaint would itself make it clear that the case projected by the complainant is untrue. In particular the learned counsel pointed out that in the complaint it has been stated that the accused issued cheque making the complainant to believe that there was Crl.R.P. No.3086 of 2003 -: 3 :- sufficient amount standing to the credit of his account and if so the accused could have drawn money from his account instead of borrowing from the complainant. If that be so, the learned counsel submits that there was no necessity to borrow the amount at all. The learned counsel for the complainant would submit that the submission made by the learned counsel for the accused is incorrect. A reading of the entire complaint would suggest that the borrowal had taken place earlier and the cheque was issued subsequently. The court has to see the entire evidence adduced by both sides. When exactly the amount was borrowed by the accused was not stated by the complainant but it was stated that Ext.P1 was issued to discharge the amount borrowed by the accused. 6. The learned counsel for the complainant would submit that the accused had three different cases, advanced at different stages. In Ext.D1, the reply notice, his case was that he had borrowed Rs.20,000/- from the complainant and Crl.R.P. No.3086 of 2003 -: 4 :- towards that transaction including the interest Rs.65,000/- was paid but the cheque was not returned since the complainant was not present at that time. When the accused was questioned under Sec.313 Cr.P.C. the case put forward by the defence was that when he requested for loan the complainant entrusted the gold ornaments of his wife for enabling the accused to pledge the same in a bank and thus he obtained the amount from the bank by pledging gold ornaments of the complainant's wife. It was stated that complainant himself paid the amount in the bank and so Rs.40,000/- was due to the complainant. It is further contended by the complainant that there is yet another case for the accused. His case when he was examined was to the effect that a sum of Rs.20,000/- was borrowed by him but it was repaid to the wife of the complainant including another sum of Rs.20,000/- being the interest. It is his case that though Rs.40,000/- was paid, the cheque in question was not returned. Pointing out these three inconsistent cases Crl.R.P. No.3086 of 2003 -: 5 :- the learned counsel for the complainant would submit that there is no merit in the case advanced by the accused to deny the liability. 7. There is evidence to show that there was transaction between the complainant and the accused. The plea of discharge put forward by the accused could not be substantiated by the accused. The evidence given by PW1 and the documentary evidence adduced by the parties were considered by the two courts below and came to a conclusion that the case set up by the complainant that Ext.P1 was issued in discharge of a legally enforceable debt/liability is true. In the light of what has been stated above, I find no reason to interfere with the finding so entered by the courts below. The conviction is thus confirmed. The accused was sentenced by appellate court to undergo S.I. for two months and to pay Rs.40,000/- as compensation. The sentence can be modified. In the result, this Crl.R.P. is disposed of as stated Crl.R.P. No.3086 of 2003 -: 6 :- below :- The conviction is confirmed. In supersession of the sentence awarded by the courts below, the accused is sentenced to undergo imprisonment till the rising of the court and to pay Rs.90,000/- as compensation and in default of payment of compensation, he will undergo S.I. for two months. The revision petitioner will appear before J.F.C.M.- II (Mobile), Kottayam on 28.10.2011 to undergo imprisonment till the rising of the court and to pay/deposit the compensation amount as aforesaid. Needless to say that if any amount had already been deposited, only the balance amount need be deposited. N.K.BALAKRISHNAN, JUDGE. Jvt