IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.Rev.Pet.No. 512 of 2007(E) ------------------------------ CRA.131/1998 of ADDL. SESSIONS COURT-I (ADHOC), PATHANAMTHITTA CC.245/1996 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- M.M. ABDUL SHUKKUR, SOUTHERN TEXTILES, THALASSERY. BY ADV. SRI.V.SETHUNATH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: -------------------- 1. RAJESH KUMAR MEHTA, POWER OF ATTORNEY OF (M/S. METHA ENTERPRISES, COLLEGE ROAD, PATHANAMTHITTA) OF RENI METHA, PROPRIETORY A.K. TEXTILES, AMRUTHSAR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MVS.NAMBOOTHIRY FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 512 OF 2007 ------------------------------------------ Dated this the 24th day of October, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Ext.P2 to P8 cheques were admittedly issued by petitioner to the first respondent towards value of the articles purchased from the first respondent. They were dishonoured when presented under Ext.P9 series of dishonour memos. Ext.P10 notice was sent demanding the amount covered by the dishonoured cheques and admittedly petitioner did not pay the amount. In such circumstances petitioner cannot dispute the fact that he committed the offence under section 138 of N.I. Act. In fact this aspect is not in dispute. Revision is filed challenging only the sentence. Case of the petitioner is that when the trial was in progress there was a talk of settlement between the counsel appearing on both sides and for the amount covered by Exts.P2 to P8 cheques, Rs.25,000/- inclusive of interest and cost was agreed to be paid CRRP512/08 2 and petitioner paid that amount through the counsel and though payment of Rs.25,000/- was received, later first respondent contended that the said payment was not towards the dishonoured cheques, but to other transactions. When first respondent was examined as PW1, he took up this stand. As the original counsel who was appearing for first respondent relinquished the vakalath, he was examined on the side of defence as DW1. DW1 deposed that he received Rs.25,000/- as paid by the petitioner through his counsel. But he deposed that according to first respondent it is not in respect of the transaction covered under Exts.P2 to P8 cheques. Learned Magistrate and learned Sessions Judge accepted that explanation and convicted and sentenced the petitioner. Learned Chief Judicial Magistrate sentenced petitioner to a fine of Rs.25,000/- and in default simple imprisonment for three months. Learned Sessions Judge confirmed the same. 2. The only question is whether the sentence is to be modified. Though learned counsel appearing for first respondent argued that Rs.25,000/- received by first respondent during the pendency of the case do not relate to the transaction covered under Exts.P2 to P8 cheques and when petitioner was CRRP512/08 3 examined Exts.P15 to P17 invoices were shown to him to prove that there were other transactions, they relate to transactions prior to the issuance of Exts.P2 to P8 cheques. It was argued by first respondent that petitioner as DW2 attempted to wriggle out when Exts.P15 to 17 were shown and deposed that he cannot say whether those articles were received by him. It was argued that hence the payment proved by evidence of DW1 is not in respect of amount covered by Exts.P2 to P8 cheques but other transactions. First of all the question whether the said payment is towards the cheque covered by the dishonoured cheques or towards other transaction is not to be decided in this case. But while considering reasonableness of the sentence that question assumes importance. If Exts.P15 to P17 relate to the transaction after issuance of Exts.P2 to P8 cheques, submission of the learned counsel appearing for first respondent could have been accepted. It is seen that Ext.P15 to P17 that they are the invoices for the period 1993-1994, when Exts.P2 to P8 cheques were issued during the period February 1996 to March 2006. Therefore it is not possible to believe the explanation that when the sword of prosecution was hanging over the head of the petitioner, he would pay the amount in respect of other CRRP512/08 4 transactions and that too through the counsel appearing for the first respondent in this case. In such circumstances interest of justice warrants modification of sentence. Revision is allowed in part. While confirming the conviction for the offence under section 138, the sentence as awarded by learned Magistrate and confirmed by learned Sessions Judge is confirmed. The sentence is modified to a fine of Rs.2000/- and in default simple imprisonment for one month. The direction to pay compensation under section 357(1) of Cr.P.C. is set aside. If petitioner has deposited any amount before the learned Magistrate as directed by this Court, he is entitled to withdraw the same less the fine. M. SASIDHARAN NAMBIAR, JUDGE Okb/-