IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 3094 of 2008() ----------------------------------------- CRA. 857/2006 OF SESSIONS COURT, KOZHIKODE DIVISION. C.C. NO.298/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOZHIKODE. .... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------- K.HASEENA MOOSA, AGE 38, W/O.MOOSA, 38/302 IB-2, PANKAJ APPARTMENTS, CORPORATION ROAD P.O., BEACH, CALICUT. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR RESPONDENTS: RESPONDENT/ COMPLAINANT ------------------------ 1. T.T.ABOOBACKER, P.P.U.GARDEAN, THALACHERY, PERAMBA, V.K.KRISHNA MENON ROAD, CALICUT DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3094 OF 2008 ............................................ DATED THIS THE 19th DAY OF SEPTEMBER, 2008 ORDER Petitioner is the accused in C.C.298 of 2005 and first respondent, the complainant. Complaint was lodged alleging that petitioner borrowed Rs.5,00,000/- from first respondent on 9.2.2005 and towards discharge of that liability, issued Ext.P1 cheque drawn in his account maintained in Calicut Branch of Nedungadi Bank on 8.6.2005 and when the cheque was presented for encashment under Ext.P2, it was dishonoured for want of sufficient funds and first respondent was intimated about it by the bank under Ext.P3 and immediately first respondent sent Ext.P4 notice demanding the amount covered by Ext.P1 cheque, which was received by petitioner. Ext.D1 reply was sent denying the liability and he did not pay the amount and thereby committed offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Complainant was examined as PW1 and Exts.P1 to P6 were marked. Petitioner was not examined. On his side, Ext.D1 and Ext.D2 applications form for opening bank account in Nedungadi Bank were marked. 2. Learned Magistrate, on the evidence found that petitioner had borrowed Rs.5,00,000/- from first respondent and Ext.P1 cheque CRRP 3094/2008 2 was issued towards its repayment and Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent had complied all statutory formalities and thereby committed the offence. He was sentenced to simple imprisonment for four months in addition to a compensation of Rs.5,00,000/-. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.857 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the findings of learned Magistrate and modified the sentence to fine of Rs.5,05,000/- and directed to pay the same as compensation under Section 357(1) of Code of Criminal Procedure to first respondent. The conviction and sentence is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that even in Ext.D1 reply, petitioner contended that he did not issue any cheque to first respondent and in spite of the fact that petitioner filed a petition before learned Magistrate to send Ext.P1 cheque to an expert for a report on comparing the signature seen therein, with the admitted signature of petitioner, it was not allowed and courts below compared the signatures of their own without the aid of an expert and found that the cheque was issued by petitioner and petitioner did not get a fair opportunity to prove his case and therefore conviction and sentence is unsustainable. CRRP 3094/2008 3 4. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. In Ext.D1 reply what was contended by petitioner was that she did not issue the cheque and she presumes that first respondent has concocted a negotiable instrument, using misplaced cheque leaf of petitioner. There is no case that the cheque was not signed when it was allegedly misplaced. Learned Sessions Judge has also stated that even when questioned under Section 313 of Code of Criminal Procedure, there was no specific case that cheque lost was unsigned. Learned Sessions Judge also took note of the grounds in the appeal memorandum to the effect that case of petitioner was that cheque was illegally taken from the office of Lavanya Tours and Travels without the knowledge of petitioner and it is not a case of denial of the signature in the cheque. Learned Sessions Judge also compared the signature seen in Ext.P1 with the admitted signature seen in the vakalath and Ext.D1 specimen signature given by petitioner at the time of opening the account as well as other signatures available in the court records and found that signatures are identical. Learned Sessions Judge also found that there is no reason to disbelieve the evidence of PW1 with regard to the original transaction whereunder petitioner had borrowed Rs.5,00,000/- from first respondent. It was found that it is towards the repayment of that amount, Ext.P1 cheque was issued. I find no CRRP 3094/2008 4 illegality in the appreciation of evidence. In any case, appreciation of evidence by courts below cannot be said to be perverse warranting reappreciation. If that be so, evidence conclusively establish that Ext.P1 cheque was issued by petitioner towards the repayment of the amount borrowed earlier and it was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under Section 138 of N.I.Act. Hence conviction is perfectly legal and correct. 5. Then the only question is with regard to sentence. Though learned Magistrate awarded a substantive sentence, learned Sessions Judge modified the sentence to fine and that too, only Rs.5000/- more than the amount covered by the cheque though Section 138 of N.I Act enables the court to award a fine of, double the amount covered by the cheque. In such circumstances, I do not find any reason to interfere with the sentence also. Revision Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-