IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4115 of 2008() ------------------------------ CRA.22/2008 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.964/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.N.SATHEESAN, AGED 43 YEARS, S/O.NARAYANAN, KUZHIPPALLY VEEDU,CHANDIROOR P.O. WARD-9, AROOR PANCHAYAT, CHERTHALA. BY ADV. SRI.T.A.RAJAN SRI.LUIZ GODWIN D'COUTH RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. MANIAMMA, AGED 55 YEARS, D/O. LAKSHMI, THATTASSERI CHIRAYIL, KALAVAMKODAM,CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM BY PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 4115 OF 2008 ............................................ DATED THIS THE 19th DAY OF DECEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the daughter of the complainant in C.C.964 of 2005 on the file of Judicial First Class Magistrate-II, Cherthala. First respondent was impleaded before the trial court consequent to the death of the complainant being her daughter and legal heir. Learned Magistrate convicted petitioner for the offence under Section 138 of N.I. Act and sentenced him to simple imprisonment for three months and a compensation of Rs.40,000/- and in default, simple imprisonment for one month. Conviction and sentence was challenged before Sessions Court, Alappuzha in Crl.A.22 of 2008. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel argued that there is no evidence to prove that Ext.P1 cheque was issued towards the discharge of any debt or liabililty and in fact the cheque was given as security when revision petitioner borrowed Rs.5000/- from Kochuveli Santhosh and not to the complainant and therefore the conviction is not sustainable. It was also argued that there was no notice as provided under Section 138(b) CRRP 4115/2008 2 of N.I.Act as notice was not served on the petitioner but was returned as unserved. It was finally argued that the sentence is excessive. 3. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. Though complainant died by the time evidence was recorded, first respondent daughter of the complainant was examined as PW1 and she deposed that she was present at the time when revision petitioner borrowed the amount of Rs.40,000/- from her mother and also when Ext.P1 cheque was issued towards its repayment. Argument of the learned counsel is that courts below should not have believed the evidence of PW1. On going through the judgments of courts below, it is clear that evidence was properly appreciated. In any case it cannot be said that appreciation of evidence was perverse. If the evidence of PW1 is believable, there is evidence to prove that revision petitioner borrowed Rs.40,000/- and issued Ext.P1 cheque towards its repayment. Nothing was pointed out as to why the finding of courts below with regard to credibility and reliability of PW1 is to be interfered. Though revision petitioner contended that Ext.P1 cheque was issued as security to one Kochuveli Santhosh, no evidence was adduced even to probabilise that case. In such circumstances, courts below were justified in finding that Ext.P1 cheque was issued towards discharge of existing liability. Though CRRP 4115/2008 3 revision petitioner contended that there was no notice, courts below relying on Ext.P5, the original returned notice, found that the notice was returned unclaimed after intimation was given. There is no case for petitioner that the address seen in Ext.P5 is not his correct address. In such circumstances, finding of learned Magistrate and learned Sessions Judge that complainant had complied with all the statutory formalities provided under Section 138(b) of N.I.Act is correct. Hence conviction of revision petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the question is with regard to the sentence. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine with a direction to pay fine on realisation as compensation to first respondent. 5. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and a fine of Rs.45,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.40,000/- to be paid to first respondent as compensation under CRRP 4115/2008 4 Section 357(1) of Code of Criminal Procedure. Revision petitioner is directed to appear before the Magistrate on 18.2.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-