IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 3071 of 2008() ------------------------------ CRA.110/2003 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.220/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVISION PETITIONER: APPELLANT:ACCUSED: ------------------------------------------------------------------------ M.KUNHIRAMAN, S/O. KUNHAMBU, NELLOOR HOUSE,P.O.ERUVESSY, KANNUR DISTRICT. BY ADV. SRI.T.P.PANKAJAKSHAN RESPONDENTS: RESPONDENTS:COMPLAINANT & ANOTHER: -------------------------------------------------------------------------------------------- 1. ABRAHAM THOMAS, S/O.THOMAS, PENDANATH, ERUVISSERY AMSOMRY AMSOM, P.O.CHEMBERI,KANNUR DISTRICT, KANNUR AMSOM, KANNUR DISTRICT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3071 OF 2008 =========================== Dated this the 22nd day of September,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. His case is that petitioner borrowed Rs.60,000/- on 20.7.1999 and issued Ext.P1 cheque dated 3.8.1999 drawn in his account maintained in North Malabar Gramin Bank, towards its repayment and when Ext.P1 was presented for collection, it was dishonoured under Ext.P2 and first respondent sent Ext.P3 notice demanding the amount covered by the dishonoured cheque and though petitioner received the notice under Ext.P4 acknowledgement, he did not pay the amount and thereby committed the offence. Petitioner pleaded not guilty. He did not adduce any evidence. Case of the petitioner at the time of evidence was not he had issued the cheque to Kurian and he cannot CRRP 3071/2008 2 say how first respondent obtained the cheque and he is not liable to pay any amount to first respondent. 2. Learned Magistrate on the evidence of PW1 found that Ext.P1 cheque was issued towards discharge of existing liability and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities and petitioner thereby committed the offence under section 138 of Negotiable Instruments Act. He was sentenced to simple imprisonment for six months and a fine of Rs.70,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl.A.110/2003. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision filed under section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner CRRP 3071/2008 3 was heard. 4. The argument of the learned counsel appearing for petitioner is that Ext.P1 cheque was not issued towards discharge of an existing liability and therefore conviction under section 138 of N.I Act is not sustainable. Learned counsel also argued that in any case sentence awarded is excessive and petitioner may be granted time to pay the fine. 5. On hearing the learned counsel and on going through the judgments of the courts below, I do not find any reason to interfere with the findings of fact by the trial court. Though petitioner contended that he did not issue Ext.P1 cheque to first respondent and it was issued to one Kurian, no evidence was adduced by him. The trial court and appellate court appreciated the evidence of PW1 in the proper perspective and found that Ext.P1 cheque was issued towards repayment of Rs.60,000/- borrowed earlier. I find no reason to interfere with that finding of fact. In any case the CRRP 3071/2008 4 appreciation of evidence cannot be said to be perverse warranting reappreciation. 6. The fact that Ext.P1 cheque was issued towards the discharge of existing liability was conclusively proved by evidence of PW1. It was also proved by PW1 that the cheque was dishonoured for want of sufficient funds. That aspect was not disputed also. Exts.P3 and P4 establish that the amount covered by Ext.P1 cheque was demanded within the statutory period. It is also not disputed that complaint was also lodged within the period. Conviction of the petitioner for the offence under section 138 of N.I Act is perfectly legal and warrants no interference. 7. Then the only 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 him. Learned Magistrate sentenced petitioner to simple imprisonment for six months in addition to the fine of Rs.70,000/-. Interest of justice will CRRP 3071/2008 5 be met if the sentence is modified to a fine with default sentence and a direction to pay compensation as provided under section 357(1) of the Code of Criminal Procedure in addition to substantive sentence of imprisonment till rising of the court. Revision is therefore partly allowed. While confirming the conviction for the offence under section 138 of N.I. Act, sentence is modified to imprisonment till rising of the court and a fine of Rs.72,000/- and in default simple imprisonment for three months. On realisation of the fine amount Rs.71,000/- is to be paid to first respondent as compensation as provided under section 357(1) of Code of Criminal Procedure. Petitioner is directed to pay the fine amount within two months from today. Petitioner to appear before the learned Magistrate on 26.11.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP 3071/2008 6 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006