IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 3410 of 2008() ------------------------------ CRA.887/2007 of ADDL.SESSIONS COURT (ADHOC-I), KOTTAYAM CC.274/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VAIKOM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MARTIN, S/O.PETER, AGED 34 YEARS, INDIAN BAKERY, VADAMMEMURI VILLAGE, NEREKADAVU BHAGOM, UDAYANAPURAM PO. VAIKOM TALUK, KOTTAYAM DISTRICT, R/AT.KANNIVEETTIL, CMC-11, ERUVELI BHAGOM NORTH CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.M.A.FIROSH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. SASIDHARAN PILLAI,S/O.RAGHAVAN PILLAI SREEDEVI NIVAS, VAIKOM PO., NADUVILE VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM,. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3410 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R petitioner is the accused in C.C. 274 of 2005 on the file of Judicial First Class Magistrate, Vaikom. First respondent is the complainant. Petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.50,000/- and in default simple imprisonment for two months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.Appeal 887 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction. But the sentence was modified to imprisonment till rising of the Court and a compensation of Rs.50,000/- and in default simple imprisonment for two months. The conviction and sentence is challenged in the 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. It is argued that Courts below on the evidence of DWs 1 to 3 should have CRRP 3410/08 2 accepted the case of the petitioner that Exts.P1 and P2 cheques were issued as security and not towards repayment of the amount and therefore the conviction is not sustainable. Learned counsel also argued that evidence of PW1 should not have relied on by the Courts below and on the evidence it is clear that Exts.P1 and P2 cheques were not issued towards discharge of an existing liability. 4. On hearing the learned counsel and going through the judgments of the Courts below, I cannot agree with the submission of the learned counsel that appreciation of evidence was perverse warranting reappreciation. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that evidence of PW1 establishes that Exts.P1 and P2 cheques were issued towards repayment of the amount due to first respondent. Learned Magistrate appreciated the evidence of DWs 1 to 3 and found that the defence case that Exts.P1 and P2 cheques were issued as security cannot be believed. Learned Sessions Judge reappreciated the evidence and confirmed that finding. Though learned counsel vehemently argued that appreciation of evidence was not proper, no material was pointed out which was CRRP 3410/08 3 omitted to be taken note of by the learned Magistrate or learned Sessions Judge. The attempt of the learned counsel is to reappreciate the evidence and to persuade this Court to arrive at a different finding. So long as the view taken by the learned Magistrate and learned Sessions Judge is a possible and reasonable view that could be taken on the evidence, it is not for this Court to reappreciate the evidence substituting the finding of the Courts below by a finding of this Court. On proper appreciation of the evidence, I do not find any reason to interfere with the findings of the Courts below that Exts.P1 and P2 cheques were issued towards repayment of the amount due and when the cheques were presented for encashment, they were dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under sections 138 and 142 of N.I. Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal and correct. 5. Then the question is only with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the Court in addition to compensation of Rs.50,000/- and in default simple imprisonment for two months. As declared CRRP 3410/08 4 by the Apex Court, when compensation is awarded under section 357(3) of Code of Criminal Procedure, default sentence cannot be awarded. Therefore to that extent the sentence is not correct. Interest of justice will be met if the sentence is modified to imprisonment till rising of the Court and a fine of Rs.50,000/- and in default simple imprisonment for one month. On realisation of the fine, it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is granted one month time to pay the fine. Petitioner is directed to appear before learned Magistrate on 26.11.2008. Revision is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-