IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3313 of 2008() ------------------------------ CRA.683/2007 of ADDL.SESSIONS JUDGE (FAST TRACK(ADHOC II), KOZHIKODE CC.184/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KARIMBIL DEVARAJ, AGED ABOUT 54 YEARS, 4/528 A, KARIMBIL HOUSE, KACHERY AMSOM, KURUMBRAKKATTASERRY, JOSEPH ROAD, KOZHIKODE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M.GOPINATHAN, S/O.KRISHNAN, AGED 40 YEARS, GAYATHRI NIVAS, NADUVATTOM AMSOM, DESOM, P.O.NORTH BEYPORE, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PP SRI P RAVEEDNRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3313 OF 2008 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act by Judicial First Class Magistrate-IV, Kozhikode in C.C.184 of 2004. First respondent is the complainant. Case of first respondent is that petitioner borrowed Rs.1,00,000/- for his business purpose and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in Kozhikode PB division branch of State Bank of India and when the cheque was presented for encashment, it was dishonoured under Ext.P2, for want of sufficient funds and in spite of Ext.P4 notice served on the petitioner, demanding the amount covered by the cheque, which was received by petitioner under Ext.P5 acknowledgement on 4.4.2004, petitioner did not pay the amount and thereby committed an offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. The defence was that he had borrowed Rs.90,000/- from first respondent four years back and repaid Rs. 3,48,000/- and at the time of borrowal, three blank signed cheques were entrusted, apart from one cheque belonging to his wife and stamp papers and the case is filed making use of one of such blank cheques. CRRP 3313/2008 2 3. Learned Magistrate, on the evidence of PW1 and Exts. P1 to P5, accepted the case of PW1 and disbelieved the defence version and found that Ext.P1 cheque was issued towards repayment of the amount borrowed and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Petitioner was convicted and sentenced to simple imprisonment for three months, in addition to a compensation of Rs.1,00,000/- under Section 357(3) of Code of Criminal Procedure with default sentence of simple imprisonment for a period of one month. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.683 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 4. Learned counsel appearing for petitioner was heard. Learned counsel argued that courts below did not properly appreciate the evidence and from the evidence, it should have been found that Ext.P1 cheque was not issued towards discharge of any debt and instead, it was issued as a blank signed cheque at the time when petitioner borrowed Rs.90,000/- and therefore conviction and sentence is not sustainable. Learned counsel finally argued that in any case, sentence CRRP 3313/2008 3 may be modified and petitioner may be granted five months' time to pay the fine amount, because of his financial conditions. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. 5. On hearing the learned counsel and going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though petitioner contended that Ext.P1 cheque was issued as a signed blank cheque at the time when he had borrowed Rs.90,000/-, there is no evidence in support of the defence. On the other hand, learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that evidence of PW1 is believable and Ext.P1 cheque was issued towards repayment of Rs.1,00,000/- borrowed earlier. In such circumstances, finding of courts below that Ext.P1 cheque was issued towards discharge of existing liability is correct. Evidence also establish that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and regular. 6. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioner to simple imprisonment for CRRP 3313/2008 4 three months, in addition to a compensation of Rs.1,00,000/- under Section 357(3) of Code of Criminal Procedure with default sentence of simple imprisonment for a period of one month. As declared by Apex court, when compensation is awarded under Section 357(3) of Code of Criminal Procedure, default sentence cannot be part of the sentence. Therefore modification is warranted with regard to the sentence. Considering the nature of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court, and a fine of Rs.1,10,000/-, to be paid within five months and in default, simple imprisonment for three months. 7. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs. 1,00,000/- to be paid within five months from today and in default, simple imprisonment for three months. On realisation of the fine amount, Rs,1,01,000/- is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. If petitioner has deposited any amount before learned Magistrate, he need deposit only the balance. M.SASIDHARAN NAMBIAR, JUDGE lgk/-