IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 3538 of 2008() ------------------------------ CRA.348/2007 of ADDL. SESSIONS COURT (ADHOC I), KOZHIKODE CC.667/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- ABDULLA.C.T., S/O.AMMEED, 50 YEARS, CHAKKIALIL THAZHE HOUSE, NADUVANNUR POST, KOYILANDY TALUK, KOZHIKODE. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): RESPONDENTS:COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. KUNHIKRISHNAN ADIYODI, S/O.KUTTIAKKEN , 50 YEARS, ANUGRAHA , BALUSSERRY POST, KOYILANDY TALUK, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3538 OF 2008 =========================== Dated this the 4th day of November,2008 ORDER Petitioner is the accused and first respondent the complainant in C.C.667/2005 on the file of Judicial First Class Magistrate-II, Perambra. First respondent lodged the complaint contending that on 10.8.2005 petitioner borrowed Rs.50,000/- and towards its repayment he issued ext.P1 cheque dated 5.9.2005 drawn in his account. When it was presented for encashment, it was dishonoured as the account was closed. Inspite of sending Ext.P6 notice demanding the amount served under Ext.P1 on the petitioner under Ext.P8, he did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and a witness was examined as DW1. Learned Magistrate found the petitioner guilty and he was convicted and sentenced to CRRP 3538/2008 2 imprisonment till rising of the court and a compensation of Rs.50,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court in Crl.A.348/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner submitted that petitioner is not challenging the conviction or the sentence and he may be granted three months' time to pay the amount as directed by the learned Magistrate and confirmed by the learned Sessions Judge. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Ext.P1 cheque was issued by the petitioner towards the repayment of Rs.50,000/- borrowed earlier. Evidence also CRRP 3538/2008 3 establish that when Ext.P1 cheque was presented for encashment, it was dishonoured as there was no sufficient funds in the account and for that reason the account was closed. Evidence also establish that first respondent complied with all the statutory formalities as provided under section 138 of N.I Act. In such circumstance, conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Learned Magistrate sentenced the petitioner only to imprisonment till rising of the court and a compensation which was for the amount covered by Ext.P1 cheque. In such circumstance, no interference in the sentence is also warranted. On the request of the learned counsel appearing for petitioner, petitioner is granted three months time from today to pay the fine and to appear before the Magistrate. If petitioner had deposited any amount before the learned Magistrate as directed by the appellate court when the sentence was suspended by the appellate court, petitioner need deposit only CRRP 3538/2008 4 the balance amount. Criminal Revision Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006