IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 3769 of 2008() ------------------------------ CRA.308/2003 of SESSIONS COURT, THALASSERY ST.8/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- G.V.NARAYANAN, AGED 62, S/O.VASUDEVAN NAMBOODIRI, KOKKUNATH HOUSE, POOTHAPARA P.O. AZHIKKAL, KANNUR. BY ADV. SRI.BABU PAUL RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------ 1. K.P.GEETHA, W/O.LATE MURALIKRISHNAN, MURALI GEETHAM, P.O. MORAZHA, (VIA) MOTTAMMAL, KANNUR. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/ 11 /2008 THE COURT ON SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3769 OF 2008 =========================== Dated this the 21st day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.8/2000 on the file of Judicial First Class Magistrate-I, Kannur. Petitioner was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.50,000/- for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl.A.308/2003. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a compensation of Rs.55,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner was heard. 3. The argument of the learned counsel is that CRRP 3769/2008 2 the courts below did not properly appreciate the evidence and the fact that no reply was sent to Ext.P3 notice should not have been given undue importance considering the close relationship of the parties. It was also argued that the cheque was not issued to first respondent but was issued as security to Gokulam Chit Funds and the Gokulam Chit Funds had initiated action for realisation of the amount due from the revision petitioner and petitioner had undergone imprisonment for non- payment of that amount and in such circumstance, courts below were not justified in convicting the petitioner for non-payment of the very same amount. It was therefore argued that the conviction is not sustainable. Learned counsel finally submitted that even if the conviction and sentence is to be confirmed, petitioner may be granted time to pay the compensation amount. 4. Learned Magistrate and the learned Sessions Judge analysed the evidence of first respondent as PW1 and petitioner as DW1. Both the courts found CRRP 3769/2008 3 the evidence of PW1 credible and reliable and the defence case not believable. The question is whether the appreciation of evidence was proper and findings warrants any interference. 5. What was contended by the revision petitioner before the courts below when examined as DW1 was that the husband of the first respondent was a subscriber in a chitty for Rs.1,00,000/- conducted by Gokulam Chit Funds and when he received the chit amount petitioner was the surety and he issued a signed blank cheque as security for the amount to be paid to the husband of the first respondent and Rs.2000/- was paid by the revision petitioner to the husband of the first respondent evidenced by Ext.D1 and execution proceedings was initiated for realisation of the amount by the Chit Funds and Ext.P1 cheque was not issued towards the discharge of any liability of the first respondent. But apart from the interested version of DW1, there is no evidence in support of the case of the revision petitioner. The evidence of PW1 establish CRRP 3769/2008 4 that Ext.P1 cheque was not issued to Gokulam Chit Funds as security as claimed by the petitioner and instead was issued to first respondent towards discharge of an existing liability. The very fact that inspite of receipt of Ext.P3 lawyer notice revision petitioner did not send a reply goes a long way to prove the case of first respondent and disprove the case of the revision petitioner. As if Ext.P1 cheque was issued to Gokulam Chit Funds and that too as security for the amount actually due from the husband of the first respondent, petitioner would not have kept quiet after receipt of notice. When the entire evidence is appreciated in the proper perspective finding of the courts below that Ext.P1 cheque was issued towards discharge of existing a recoverable debt is perfectly correct. It is not disputed that the cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction CRRP 3769/2008 5 of the petitioner in such circumstance for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 6. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court in addition to compensation of Rs.55,000/- which is only Rs.5000/- in excess of the amount covered by the dishonoured cheque. In such circumstance, I find no reason to interfere with the sentence also. Revision is dismissed. Petitioner is granted four months time from today to appear before the Magistrate and to pay the compensation. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006