IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3731 OF 2008() ------------------------------ CRA.443/2003 of ADDL.SESSIONS COURT (ADHOC)III, THIRUVANANTHAPURAM CC.15/2002 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), THIRUVANANTHAPURAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- XAVIER S., JINJU BHAVAN, MALAMUGHAL, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.A.AHZAR RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE: ------------------ 1. K. MADHAVAN PILLAI, T.C.6/10-23, SIVASAKTHY BHAVAN, KONATTUKULANGARA, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 ADV. SRI.B.REGHUNATHAN FOR R1 SRI.G.S.MOHANDAS FOR R1 SRI.V.V.MATHEW FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/12/2008 ALONG WITH CRRP 3732/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3731 & 3732 OF 2008 ------------------------------------------ Dated this the 17th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.13 of 2002 and C.C.15 of 2002 on the file of Judicial First Class Magistrate, Thiruvananthapuram. First respondent lodged the complaint contending that revision petitioner issued Ext.P1 cheque towards repayment of Rs.70,000/- borrowed and Ext.P8 cheque was issued towards repayment of Rs.60,000/- borrowed and when the cheques were presented for encashment, they were dishonoured for want of sufficient funds and in spite of notices demanding the amount covered by the dishonoured cheques, revision petitioner did not pay and thereby committed the offence under section 138 of Negotiable Instruments Act. Revision petitioner resisted the complaint contending that Ext.P1 and P8 cheques were not issued by him to the first respondent towards discharge of any debt or liability. According to the revision petitioner his sister, DW1, was liable to pay amount to first respondent and towards its security had executed Ext.D1, sale deed, and as demanded by CRRP3731/08 & 3732/08 2 first respondent she had given Exts.P1 and P8 cheques of her brother, the revision petitioner, and they were not issued towards discharge of any liability but as security. Learned Magistrate tried both the cases together. On the evidence of first respondent as PW1 and Exts.P1 to P14 and the sister of the revision petitioner as DW1 and Exts.D1 and D2, accepted the case of first respondent and rejected the case of the revision petitioner and held that Exts.P1 and P8 cheques were issued towards discharge of legally recoverable debt and convicted revision petitioner in both cases for the offence under section 138 of Negotiable Instruments Act. He was sentenced to simple imprisonment for three months in addition to a compensation by the learned Magistrate. Petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.Appeal 442/2003 & 443/2003. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court in both the cases, in addition to a compensation of Rs.75,000/- in C.C.13/2002 and a compensation of Rs.60,000/- in C.C.15/2002. Revisions are filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was CRRP3731/08 & 3732/08 3 heard. 3. Learned counsel argued that Courts below did not properly appreciate the evidence and there is no evidence to prove that Exts.P1 and P8 cheques were issued towards discharge of existing liability and evidence of DW1 should have been accepted and it should have been found that those cheques were given as security for the liability of DW1. 4. On hearing the learned counsel and going through the judgments of Courts below I find no reason to interfere with the conviction or the sentence. Case of first respondent as proved by the evidence of PW1 is that revision petitioner had borrowed Rs.70,000/- and Rs.60,000/- and issued Exts.P1 and P8 cheques towards repayment of the said debts. Though revision petitioner had raised a contention that Exts.P1 and P8 cheques were issued as security by his sister, who was examined as DW1, learned Magistrate and learned Sessions Judge for valid and sufficient reasons held that, that case cannot be accepted. If the defence case sought to be proved by DW1 is to be believed, Ext.D1 is not a sale deed, but a deed executed as security and in addition to that security as demanded by first respondent, cheques of her brother were given. The Courts below on CRRP3731/08 & 3732/08 4 reappreciation of evidence found that it is highly improbable. Added to this, in spite of notice demanding the amount covered by the dishonoured cheques, revision petitioner did not send any reply, which is not the case if those cheques were given as security by his sister and there was no liability on the part of the revision petitioner. When the entire evidence is appreciated in the proper perspective, the view taken by the Courts below is definitely a reasonable and possible view that could be taken on the evidence. I find no reason to interfere with that finding. Evidence establish that Exts.P1 and P8 cheques were issued towards discharge of the amount borrowed earlier and those cheques were dishonoured for want of sufficient funds and in spite of notices served on the petitioner demanding the amount he did not pay. It is also established that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the revision petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge took a very lenient view and modified the substantive sentence to imprisonment till rising of Court in CRRP3731/08 & 3732/08 5 addition to a compensation, which was only for the amount covered by the dishonoured cheque. In such circumstances I find no reason to interfere with the sentence also. Revision petitions are dismissed. Revision petitioner is granted two months time to pay the compensation. Revision petitioner is directed to appear before the Magistrate on 19.2.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-