IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.Rev.Pet.No. 1407 of 2003(C) --------------------------------------------------- CRA.320/2001 of SESSIONS COURT, KOTTAYAM CC.809/1998 of JFCM, CHANGANACHERRY (II-MOBILE, KOTTAYAM) .................... REVN. PETITIONER/APPELLANT/ACCUSED: K.BHASKARAN, KARTHIKA HOUSE, MOOLEDOM P.O., KOTTAYAM. BY ADV. SRI.SEBASTIAN THOMAS RESPONDENTS/RESPONDENT/COMPLAINANT - STATE: 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. O.S.BASHEER, AJAYA BHAVAN, PERUNNA P.O., CHANGANACHERRY. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R1 ADV. SRI.JOHN VARGHESE FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.6019/2003 IN CRRP 1407/2003 DISMISSED 28.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1407 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced to simple imprisonment for one month and a fine of Rs.1,500/- for the offence under Section 138 of Negotiable Instruments Act in C.C.No.809/1988 by Judicial First Class Magistrate, II-Mobile, Chenganassery. Though petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.No.320/2001, on re-appreciation of evidence, learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner and second respondent were heard. 3. Case of the second respondent is that petitioner borrowed Rs.10,000/- from him and towards its repayment, issued Exhibit P1 cheque, drawn in the account maintained by him and when the CRRP 1407/03 2 cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of statutory notice sent under Section 138(b) of Negotiable Instruments Act and received, petitioner did not pay the amount and thereby committed offence under Section 138 of Negotiable Instruments Act. Petitioner contended that Ajayaghosh, the son of the second respondent, used to procure admission for the students to Professional Colleges outside the State and petitioner wanted a seat for his son and Ajayaghosh demanded Rupees Two lakhs and petitioner issued two blank cheques to Ajayaghosh and later, he paid Rupees Two lakhs to Ajayaghosh, but the cheques were not returned back and utilising one of the cheques, the case has been foisted. 4. Learned Magistrate, on the evidence of second respondent as PW1 and petitioner as DW1, found that petitioner had borrowed Rs.10,000/- and issued Exhibit P1 cheque towards its repayment and CRRP 1407/03 3 it was dishonoured for want of sufficient funds and second respondent has complied with all statutory formalities and therefore, convicted the petitioner. 5. Argument of the learned counsel is that evidence was not properly appreciated. On going through the evidence of PW1 and DW1, I find no reason to interfere with the finding of the courts below, based on the appreciation of evidence. Appreciation of evidence cannot be said to be perverse. No material was omitted to be appreciated. In such circumstances, findings of the courts below that Exhibit P1 cheque was issued by the petitioner towards repayment of Rs.10,000/- borrowed can only be upheld. As the cheque was dishonoured for want of sufficient funds and second respondent has complied with all statutory formalities, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act can only be upheld. CRRP 1407/03 4 6. Then the only question is regarding the sentence. Considering the fact that the cheque was only for Rs.10,000/- and in the facts and circumstances of the case, interest of justice will be met if substantive sentence is modified to imprisonment till rising of court and a compensation of Rs.12,000/- to be paid to the second respondent under Section 357(3) of Code of Criminal Procedure and in default, simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of court and a compensation of Rs.12,000/- to be paid to the second respondent and in default, simple imprisonment for one month. If petitioner had deposited any amount before the learned Magistrate as directed by this Court at the time of admitting the revision, second respondent is entitled to CRRP 1407/03 5 receive it as compensation and petitioner need remit only the balance amount. Petitioner is directed to appear before the learned Magistrate on 29.6.2010. 28th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1407/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1407 of 2003 -------------------------- ORDER 28th May, 2010