IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 1385 of 2003 ---------------------------------------------- CRA.377/2001 of SESSIONS COURT, THRISSUR CC.243/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: USMAN, S/O. KUNJIMON, PANIKKAVEETTIL HOUSE, P.O.PADIYAM, THRISSUR DISTRICT. BY ADV. SRI.O.D.SIVADAS RESPONDENT/RESPONDENT/COMPLAINANT & STATE: 1. E.S.GEREESAN, EVANKIZHAKKATH HOUSE, P.O.VALAPPAD, THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL. 5908/2003 IN CRRP 1385/2003 DISMISSED 22.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1385 of 2003 -------------------------- ORDER Revision petitioner was convicted and sentenced to simple imprisonment for six months for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-II, Thrissur in C.C.No.243/1998. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.377/2001. Complainant challenged the sentence in Crl.R.P.No.53/2001 before the same court contending that compensation should have been paid by the learned Magistrate. Learned Sessions Judge heard the appeal and the revision together. Both the appeal and revision were disposed together confirming the conviction and modifying the sentence to simple imprisonment for three months and a compensation of Rs.2,25,000/- and in default, simple imprisonment for three months. CRRP 1385/03 2 2. Revision petitioner would contend that courts below did not properly appreciate the evidence and on the evidence, it should have been found that first respondent, the complainant, had no capacity to pay a loan of Rupees Two lakhs and Exhibit P1 cheque was not issued towards discharge of any debt or liability, but was issued only as security and in such circumstances, the conviction is not sustainable and in any case, the sentence awarded is excessive. 3. Learned counsel appearing for the petitioner was heard. 4. Learned counsel submitted that when petitioner sought suspension of the sentence in the revision petition, as per order dated 17.6.2003, this Court directed the petitioner to deposit the entire amount covered by the dishonoured cheque within thirty days, in addition to execution of a bond with two sureties and the learned counsel was not instructed whether the amount was deposited and CRRP 1385/03 3 the bond was executed. 5. Though learned counsel submitted that learned Magistrate and learned Sessions Judge should not have relied on the evidence of PW1, the first respondent and should have found that the cheque was not issued towards discharge of an existing liability, on going through the evidence, I find no reason to interfere with the findings of the courts below. Though petitioner would contend that Exhibit P1 cheque was issued as security and was not issued in discharge of any debt or liability, petitioner did not either get himself examined or brought in evidence any material in support of his case. Evidence of PW1, which is trustworthy, credible and reliable, establishes that petitioner borrowed Rupees Two lakhs and towards its repayment, issued Exhibit P1 cheque, drawn in his account maintained in Puthenpeedika Branch of Catholic Syrian Bank and when the cheque was presented for encashment, it was dishonoured CRRP 1385/03 4 for want of sufficient funds. Evidence also establishes that first respondent had complied with all the statutory formalities. In such circumstances, the conviction of the petitioner for the offence under Section 138 of Negotiable Instruments is perfectly legal and warrants no interference. 6. Then the only question is with regard to the sentence. Though learned Magistrate did not award compensation, learned Sessions Judge, modified the sentence by reducing the substantive sentence to simple imprisonment for three months and a compensation of Rs.2,25,000/-. In the nature and circumstances of the case, I find no reason to interfere with the compensation. But, considering the facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of court. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Petitioner CRRP 1385/03 5 is sentenced to imprisonment till rising of court and a compensation of Rs.2,25,000/-(Rupees Two lakhs twenty five thousand only), to be paid to the first respondent and in default, simple imprisonment for two months. Petitioner is directed to appear before Judicial First Class Magistrate- II, Thrissur on 30.08.2010. The Magistrate is directed to execute the sentence. 22nd July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1385/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1385 of 2003 -------------------------- ORDER 22nd July, 2010