IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 4126 of 2008() ------------------------------ CRA.224/2007 of SESSIONS COURT, MANJERI ST.262/2005 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER/ APPELLANT/ACCUSED: ------------------------------ ALAVIKUTTY.P, S/O. LATE RAYINKUTTY MUSALIYAR, CHULLIKODE, THAVANNOR.P.O. BY ADV. MR.K.M.SATHYANATHA MENON MR. M.V. ANANDAN MS. DAISY I. DANIEL MR. SOLAMAN RESPONDENTS/ RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. LUKMAN BABU, S/O. MOHAMMADALI, VALIYAPEEDIAKKAL HOUSE, PATHANAPURAM, MOOLAYIL, VALLILAPUZHA.P.O. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, COCHIN-682031. PUBLIC PROSECUTOR MR. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- CRL.R.P.No. 4126 OF 2008 -------------------------------------------------- Dated this the 2nd day of February, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 262 of 2005 on the file of Chief Judicial Magistrate, Manjeri. Revision petitioner was convicted and sentenced to simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Sessions Court, Manjeri in Crl. Appeal 224 of 2007. Learned Additional Sessions Judge, on reappreciation of evidence confirmed the conviction and modified the sentence to a fine of Rs.2,00,000/- and in default simple imprisonment for one month with a direction to pay the fine on realisation to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. CRRP 4126/2008 2 3. The argument of the learned counsel is that as Ext.P1 cheque was dishonoured on the ground that the account was closed and so offence under section 138 of Negotiable Instruments Act is not attracted. Learned counsel argued that the account was closed by the bank itself and not at the instance of the revision petitioner and in such circumstances no offence under section 138 is attracted. Learned counsel also argued that Ext.P1 cheque was not issued towards repayment of any amount borrowed or in discharge of any debt or liability and was only issued as security and the fact that a property was registered in the name of the first respondent and his wife by the revision petitioner probablise the case that Ext.P1 cheque was issued as a security and therefore the conviction is not sustainable. Learned counsel finally submitted that in case the revision is not to be admitted, revision petitioner may be granted sufficient time to pay the fine. 4. Though learned counsel argued that as the account was closed and the cheque was dishonoured on that ground no offence under section 138 is attracted, as held by the Apex Court in NEPC Micon Ltd. and others Vs. Magma Leasing Ltd. CRRP 4126/2008 3 (AIR 1999 SC 1952) the dishonour of the cheque even if on the ground that account was closed, would attract an offence under section 138 of Negotiable Instruments Act. So also the fact that the account was closed by the bank prior to the date of issuance of the cheque also will not enable revision petitioner to contend that an offence under section 138 is not attracted. That question is already settled by the Division Bench of this Court holding that even if the cheque was issued subsequent to the closing of the account, an offence under section 138 is attracted. Though learned counsel argued that Ext.P1 cheque was issued as security, there is no evidence even to probablise the version. The fact that a registered sale deed was executed by revision petitioner in favour of first respondent by itself will not establish that Ext.P1 cheque was issued as security, especially when there is no case that there is any recital in the sale deed that the cheque was issued as a security. In such circumstances I find no reason to interfere with the findings of the Courts below on appreciation of evidence that Ext.P1 cheque was issued towards discharge of the liability. Fact that first respondent had complied with all statutory formalities provided under section CRRP 4126/2008 4 138 and 142 of Negotiable Instruments Act is not disputed. In such circumstances conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. Learned Sessions Judge modified the sentence to only fine, with a direction to pay the fine on realisation to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. In such circumstances I find no reason to interfere with the sentence also. Revision is dismissed. Revision petitioner is granted three months time to pay the fine. M. SASIDHARAN NAMBIAR, JUDGE okb