IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 1422 of 2003(B) --------------------------------------------------- CRA.76/2001 of ADDL. SESSIONS COURT (FAST TRACK-I), PALAKKAD ST.1420/1997 of JFCM, MANNARKAD .................... REVN. PETITIONER//APPELLANT/ACCUSED: P.T.JAMES, AGED 50 YEARS, S/O.THOMAS, PANDAPLAKKAL HOUSE, PICHALAMUNDA, MUTHUKURUSSI PO, THACHAMPARA, MANNARKKAD. BY ADV. SRI.R.RAJASEKHARAN PILLAI SRI.R.SREEDHARAN NAIR SRI.GEORGE T. THACHETT SMT.SABINA JAYAN SRI.M.J.JOHN RESPONDENTS/STATE & RESPONDENT/COMPLAINANT: 1. JOSE P.THOMAS, AGED 49 YEARS, S/O.THOMAS, MARAMTHOTTIL HOUSE, KORANAKUNNU, IRUMBAKACHOLA, MANNARKKAD. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.K.P.MUJEEB FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.6133/2003 IN CRRP 1422/2003 DISMISSED 17.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1422 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act to simple imprisonment for three months and a compensation of Rs.40,000/- by Judicial First Class Magistrate, Mannarkkad in S.T.No.1420/1997. Petitioner challenged the conviction and sentence in Crl.A.No.76/2001. Learned Additional Sessions Judge (Fast Track-I), Palakkad, on re-appreciation of the evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel appearing for the petitioner submitted that as per the order of this Court in Crl.M.P.No.6133/2003, petitioner deposited the entire amount covered by the cheque before the CRRP 1422/03 2 Magistrate and considering the fact that petitioner has already deposited the amount, sentence may be modified. 4. Case of the first respondent is that petitioner issued Exhibit P1 cheque for Rs.40,000/- on 26.5.1997 towards repayment of the amount borrowed earlier and when the cheque was presented for encashment, evidenced by Exhibit P2, it was dishonoured on 5.9.1997 for want of sufficient funds and Exhibit P4, the notice sent under Section 138(b) of Negotiable Instruments Act demanding the amount covered by the dishonoured cheque within the period, was returned unclaimed, evidenced by Exhibit P4 and petitioner, thereby committed the offence under Section 138 of Negotiable Instruments Act. Though petitioner raised a contention that the cheque was not issued towards discharge of an existing liability, learned Magistrate and learned Additional Sessions Judge, on appreciation of the evidence, found that the dishonoured cheque was CRRP 1422/03 3 issued towards discharge of an existing liability. Though it was contended by the petitioner that Exhibit P1 cheque was lost by him and it was misused by the first respondent, no acceptable evidence was adduced. On going through the records, I find no reason to interfere with the appreciation of evidence. Evidence establishes that the cheque was issued for Rs.40,000/- towards discharge of an existing liability. Evidence also establishes that the cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities. Therefore, the conviction for the offence under Section 138 of Negotiable Instruments Act is perfectly legal and in order. 5. Then the question is regarding the sentence. Considering the nature of the offence and in the interest of justice, a sentence of imprisonment till rising of court and a compensation of Rs.40,000/- would serve justice. CRRP 1422/03 4 In such circumstances, revision is allowed. While confirming the conviction for the offence under Section 138 of Negotiable Instruments Act, sentence is modified as follows: Petitioner/accused is sentenced to imprisonment till rising of court and a compensation of Rs.40,000/- to be paid to the first respondent. If petitioner has already deposited the amount before the learned Magistrate, as directed by this Court in Crl.M.P.No.6133/2003, he need not deposit the amount once again, but shall appear before the Magistrate and undergo the substantive sentence of imprisonment till rising of court. 17th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1422/03 5 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1422 of 2003 -------------------------- ORDER 17th May, 2010