IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 3270 of 2008 ---------------------------------------- CRA.191/2007 OF ADDL.SESSIONS COURT-III, KOZHIKODE, ST.2196/2005 OF JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY. .................... REVN. PETITIONER/ APPELLANT/ ACCUSED: ---------------------------------------------------------------- K.S.HARIKUMAR, S/O SUCHEENDRAN, KODAKKALAPARAMBA HOUSE, MALAPARAMBA P.O., CALICUT. BY ADV. SRI.T.R.RAVI, ADV. SRI.P.S.MURALI. RESPONDENTS/ RESPONDENTS/ COMPLAINANT AND STATE: ----------------------------------------------------------------------------------------- 1. M.VIMALCHAND, S/O MAHAVEER CHAND, PROPRIETOR, KANAKALAYA FINANCE LTD., AGENTS OFFICE AT AMRUTHA AUTO CONSULTANCY, CHUNDGAM, THAMARASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZER. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO.3270/2008: ORDER ON CRL.M.A. NO. 9881/08 IN CRL.R.P. NO. 3270/2008 DISMISSED 25/09/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3270 OF 2008 ............................................ DATED THIS THE 25th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act. First respondent lodged the complaint, contending that he is the Proprietor of Kanakalaya Auto Finance having agent's office at Chunkam, Thamarassery and petitioner availed a hire purchase loan of Rs.1,00,000/- for the vehicle bearing KL 11/M 7299 and petitioner did not pay any of the instalments as agreed and the entire amount due under the transaction, as on 17.5.2005 was Rs.1,89,000/- and towards its repayment, petitioner issued Ext.P3 cheque drawn in his account in Kozhikode Branch of Indian Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and first respondent sent a notice immediately calling upon petitioner to pay the amount covered by the cheque and though it was received by the petitioner the amount was not paid and he thereby committed offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. His case at the time of questioning under Section 313 of Code of Criminal Procedure was that he had no transaction with first respondent and he was having partnership business with Krishnamani and Shenoy, brother of CRRP 3270/2008 2 Krishnamani approached Padmakumar who was a financier in Thamarassery for availing loan and for that purpose, petitioner had gone to the office of Padmakumar for signing security for the loan borrowed by Shenoy and he had given Ext.P3 cheque also to Padmakumar and it was not issued towards the repayment of any amount due to first respondent and therefore he has not committed the offence under Section 138 of N.I.Act. 2. Learned Magistrate, on the evidence of first respondent as PW1, petitioner as DW1 and Exts. P1 to P9 and D1, found petitioner guilty and convicted and sentenced him to simple imprisonment for nine months, in addition to a compensation of Rs.1,89,000/- and in default, simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.191 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to imprisonment till rising of court and a compensation of Rs.1,89,000/- with a default sentence of three months. The conviction and sentence 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 did not properly appreciate the evidence and the material contradictions in the CRRP 3270/2008 3 evidence of PW1 was not properly appreciated and the very fact that Ext.D1, RC does not contain any endorsement about the hire purchase to petitioner falsifies the case. It was argued that as deposed by DW1 and evidenced by Ext.D1, the vehicle was hypothecated to Manappuram Finance and it shows subsequent transfers and as there is no evidence to prove that the vehicle was hypothecated to first respondent and hence courts below should not have accepted the case of first respondent that Ext.P3 cheque was issued towards the repayment of the amount due to first respondent. 4. The evidence of PW1, first respondent was accepted by trial court and the appellate court. Though learned counsel vehemently argued that courts below should not have accepted the evidence, and should not have ignored the contradictions in the evidence, on going through the judgments of the courts below, it cannot be said that appreciation of evidence was perverse. First respondent has no case that the vehicle KL11 M 7299 was hypothecated to him. The case was only that petitioner availed a hire purchase loan for purchasing the vehicle. Therefore absence of an endorsement in Ext.D1 by itself is not a ground to disbelieve the evidence of PW1. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. I do not find any reason, warranting reappreciation so as to substitute finding of this court to that of the trial court and CRRP 3270/2008 4 appellate court. Evidence establish that Ext.P3 cheque was issued towards repayment of the amount due and it 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. Hence 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. Learned Sessions Judge modified the sentence to imprisonment till rising of court, in addition to a compensation with default sentence. As declared by Apex Court, when compensation is awarded under Section 357(3) of Code of Criminal Procedure, there cannot be a default sentence and therefore to that extent, the sentence is not legal. But that defect can be got over by converting compensation to fine with a direction to pay the fine amount to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Learned counsel submitted that petitioner may be granted six months time to pay the fine amount. In the nature and circumstances of the case, petitioner is granted the time sought for. 6. Revision petition is allowed in part. While confirming the conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs.1,89,000/- and in default simple imprisonment for three months. CRRP 3270/2008 5 On realisation of the fine amount, it is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate to receive the sentence on the expiry of six months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-