IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 756 of 2007() --------------------------------- CRA.420/2004 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD CC.490/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.KRISHNAKUMAR, S/O.LATE SANKARANARAYANAN NAMBIAR, POOKKATTIL VEEDU, PERINGODU. BY ADV. SRI.VIJU ABRAHAM SRI.BENOY K.KADAVAN SRI.JOY C. PAUL RESPONDENT(S):RESPONDENTS/ COMPLAINANT ------------------------------------------------------ 1. RAMACHANDRAN, S/O.UNNIKRISHNA VARIER, VATEEKKATTU VEEDU, PERINGODU DESOM, KOTHACHIRA AMSOM, OTTAPALAM TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, MUNNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SANTHEEP ANKARATH FOR R1 BY PUBLIC PROSECUTOR SRI.C.M.NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 756 OF 2007 =========================== Dated this the 26th day of September,2008 ORDER Petitioner was concurrently convicted for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of the first respondent was that petitioner was having close relationship with him and he borrowed Rs.4,00,000/- and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Kunnamkulam Branch of State Bank of India and when the cheque was presented for encashment, through his account in State Bank of Travancore, Chalissery Branch, it was dishonoured for want of sufficient funds under Ext.P2 memo and the amount covered by Ext.P1 cheque was demanded under Ext.P3 notice and instead of paying the amount as demanded, petitioner sent Ext.P4 reply denying the liability and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded CRRP 756/2007 2 not guilty. Before the learned Magistrate first respondent was examined as PW1 and Exts.P1 to P4 were marked. Petitioner was not examined and DW1 who claims that he was present at the time of the transanction was examined. 2. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to simple imprisonment for one year and a compensation of Rs.4,10,000/- under section 357(3) of Code of Criminal Procedure with a default sentence of simple imprisonment for three months. Petitioner challenged the conviction and sentence before Additional Sessions Court, Palakkad in Crl.Appeal 420/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a compensation of Rs.4,10,000/- with default sentence of simple imprisonment for three months. Revision is filed under section 397 and 401 of Code of Criminal Procedure challenging the conviction and sentence. CRRP 756/2007 3 3. Learned counsel appearing for petitioner and first respondent were heard. 4. Learned counsel appearing for petitioner argued that even learned Magistrate found that case of first respondent as such cannot be believed and in such circumstance conviction is unsustainable. It was argued that it cannot be believed that first respondent withdrawn money from Provident Fund and granted a loan to the petitioner without any interest and for that reason alone case of PW1 should have been disbelieved. It was also argued that evidence of DW1 should have been accepted by the courts below and it should have been found that Ext.P1 cheque was not issued towards repayment of the amount as alleged but as security for a loan of Rs.25,000/- obtained by petitioner. Learned counsel appearing for first respondent argued that both the courts below appreciated the evidence in the proper perspective and there was no misappreciation of evidence and therefore there is no reason to interfere with the CRRP 756/2007 4 conviction and sentence. 5. On going through the evidence of PW1 and DW1, I do not find any reason to interfere with the findings of the courts below. The evidence of PW1 that he was on very cordial terms with the petitioner was not challenged in cross examination. Further evidence of PW1 that the transaction was at his house and petitioner had asked for the loan even earlier also was not challenged in cross examination. Evidence of PW1 that because of the relationship first respondent granted a loan to the petitioner who agreed to repay the same within three months and executed promissory note and after the expiry of three months promissory note was returned and petitioner issued a cheque was not challenged in cross examination except with regard to the quantum and execution of Ext.P1 cheque as such. Though DW1 was examined it was not suggested to PW1, when he was cross examined, that at the time of transaction apart from the petitioner and first respondent anybodyelse was present much less CRRP 756/2007 5 DW1. In such circumstance, it cannot be believed that DW1 was present at the time of the transaction. If petitioner was on cordial terms with the first respondent, case of first respondent that when petitioner asked for the money he gave the money without interest cannot be disbelived in the absence of the evidence on record. In such circumstance, courts below on the evidence rightly found that Ext.P1 cheque was issued towards discharge of the amount borrowed and the 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 Negotiable Instruments Act, I find no reason to interfere with the conviction. 6. Then the only question is with regard to the sentence. The Sessions Judge modified the sentence to imprisonment till rising of the court and a compensation of Rs.4,10,000/-. Learned counsel appearing for petitioner pointed out that in view of the declaration of law by the Apex Court, there CRRP 756/2007 6 cannot be a default sentence for compensation awarded under sub section (3) of Section 357 of Code of Criminal Procedure Code. That defect could be cured, if the compensation is converted to fine with a direction to pay fine amount as compensation under section 357(1) of Code of Criminal Procedure. Therefore the sentence is modified to that extent. 7. Learned counsel for petitioner also submitted that petitioner may be granted some time to pay the amount. Petitioner is granted three months time to pay the fine amount. Criminal Revision Petition is disposed as follows:- The conviction for the offence under section 138 is confirmed. The sentence of imprisonment till rising of the court is confirmed. In addition petitioner is sentenced to pay a fine of Rs.4,10,000/- within three months from today and in default simple imprisonment for two months. On realisation of the fine amount, first respondent is to be paid the fine amount as compensation under section 357(1) of Code of CRRP 756/2007 7 Criminal Procedure. If petitioner has deposited Rs.2,00,000/- as directed by this court or any other amount, he need only deposit the balance amount and in that event first respondent is entitled to withdraw that amount. Petitioner is directed to appear before learned Magistrate on 29.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006