IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3578 of 2008() ------------------------------ CRA.168/2007 of SESSIONS COURT, TRIVANDRUM ST.297/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT IX, THIRUVANANTHAPURAM. ............................................. REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- PRASANNA HUDSON, RESIDING AT GANDHI NAGAR 321. TC.C/15/1221, VAHUTHAKADU, THYCADU P.O., THIRUVANANTHAPURA, NOW RESIDING AT BC.BHAVAN, THEKKE THAMARAVILLA, KEEZHKOTTA DESOM, CHENKAL VILLAGE, NEYYATTINKARA WORKING AT ALL INDIA RADIO, VAZHUTHACAUD, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. RAJAPADMAM.S. S/O.NARAYANAPILLAI, MEENALAYAM, THENOOR, VELLAYANI, NEMOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. CRL.R.P. NO.3578 OF 2008 Dated, this the 7 th day of November,2008 ORDER Petitioner is the accused and first respondent the complainant in S.T.297/2006on the file of Judicial First Class Magistrate, Thiruvananthapuram. Case of the first respondent was that petitioner borrowed Rs.75,000/- and towards its repayment issued Ext.P1 cheque dated 6.8.2003 drawn in his account maintained in Vazhuthacaud Branch of State Bank of Travancore and when the cheque was presented, under Ext.P2 it was dishonoured and inspite of Ext.P3 notice, served on the petitioner under Ext.P5,demanding the amount covered by the dishonoured cheque it was not paid and petitioner thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P6 were marked. Petitioner did not adduce evidence. Learned CRRP 3578/2008 2 Magistrate on the evidence found him guilty and convicted and sentenced to simple imprisonment for six months and a fine of Rs.75,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.A.168/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and a fine of Rs.75,000/- and in default simple imprisonment for three months. On realization of fine, it was directed to be paid to first respondent as compensation. Conviction and sentence is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that courts below did not properly appreciate the evidence and relying on the solitary evidence of PW1, petitioner should not have been convicted. It is also submitted that if the conviction and CRRP 3578/2008 3 sentence is to be confirmed petitioner may be granted time to pay the fine. 4. Learned Magistrate and learned Sessions Judge considered the evidence of PW1 in the light of the defence taken. What was contended by the petitioner was that Ext.P1 cheque was issued as a blank cheque and that too as security of Rs.15,000/- borrowed from Vijayan by the husband of the petitioner and it was not issued to first respondent towards repayment of the loan. On going through the judgments of the courts below apart from the suggestion that Ext.P1 cheque was issued as a blank cheque and that too to one Vijayan, from whom husband of the petitioner borrowed the amount, no evidence was adduced. The evidence of PW1 establishes that Ext.P1 cheque was issued towards repayment of Rs.75,000/- borrowed by the petitioner. In such circumstance, I find no reason to interfere with the factual findings of the courts below that Ext.P1 cheque was issued towards repayment of the amount borrowed. CRRP 3578/2008 4 Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that first respondent complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 is perfectly legal. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court, in addition to fine which was only for the amount covered by the dishonoured cheque. In such circumstance, no interference is warranted in the sentence also. Revision Petition is dismissed. Petitioner is granted three months time from today to pay the fine. M.SASIDHARAN NAMBIAR JUDGE Tpl/- CRRP 3578/2008 5 OF 2008 =========================== Dated this the day of November,2008 ORDER M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006