IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3374 of 2008() ------------------------------ CRA.320/2004 of II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM ST.319/2002 of CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM .................... REVISION PETITIONER/ APPELLANT/ACCUSED: ------------------------------------------------------------------------- R.RAJENDRA KUMAR, S/O.PRABHAKARAN, KALPANA, N.V.NAGAR, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN SRI.V.VARGHESE RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. ARUN KUMAR, S/O.PARLAMESWARAN NAIR, T.C.NO.41/2195, LEELA NIVAS, KALIPPANKULAM, MANACAUD, THIRUVANANTHAPURAM, NOW RESIDING AT M.R.A.59, GLOBAL COMMUNICATION, NEAR MUKKOL TEMPLE, MANACAUD P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. ADV. SRI.K.B.IMTIAZ MOHAMMED FOR R1 BY PUBLIC PROSECUTOR SRI. C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3374 OF 2008 ............................................ DATED THIS THE 10th DAY OF NOVEMBER, 2008 ORDER Revision Petitioner is the accused and first respondent, the complainant in S.T.319 of 2002 on the file of Chief Judicial Magistrate, Thiruvananthapuram. Case of first respondent was that petitioner borrowed Rs.1,00,000/- for his business purpose and towards its partial discharge, issued Ext.P1 cheque for Rs.80,000/- dated 30.9.2001 drawn in his account maintained in Palayam Branch of Federal Bank. Cheque, when presented for encashment, was dishonoured under Ext.P2 for want of sufficient funds. First respondent sent Ext.P4 notice, demanding the amount covered by Ext.P1. It was served on the petitioner under Ext.P6. Instead of paying it, petitioner sent Ext.P7 reply and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. First respondent was examined as PW1 and a witness as PW2. Exts.P1 to P10 were marked. Petitioner was not examined. On his side, Dws 1 and 2 were examined. 3. Learned Magistrate on the evidence, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a fine of Rs.85,000/- and in default, simple CRRP 3374/2008 2 imprisonment for one month. On realisation of fine, Rs.80,000/- was directed to be paid to first respondent. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.320 of 2004. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and Rs.85,000/- as compensation and in default, simple imprisonment for two months. Revision petition is filed challenging the conviction and sentence. 4. Learned counsel appearing for revision petitioner was heard. The argument of learned counsel is that courts below did not properly appreciate the evidence or considered the question in the light of the settled legal position. It was argued that it is for first respondent to establish that Ext.P1 cheque was issued towards payment of a legally recoverable debt and evidence of PW1 do not establish that fact and from the evidence of Dws 1 and 2, it is proved that Ext.P1 cheque was issued as a blank cheque and that too as security for the advance received from petitioner when he agreed to execute a rent deed on the enhanced rental value, after petitioner became the owner of the tenanted building. 5. On hearing the learned counsel and going through the judgments of courts below, I cannot agree with the submission that the conviction warrants interference. True, it is for first respondent CRRP 3374/2008 3 to establish that Ext.P1 cheque was issued towards payment of a legally recoverable debt due from the petitioner. Learned Magistrate and learned Sessions Judge considered this question in the proper perspective. Believing the evidence of PW1 it was found that Ext.P1 cheque was issued towards part payment of the amount borrowed by petitioner earlier. The defence taken was that petitioner is the tenant of the building belonging to the family of petitioner and subsequently the ownership of building vested with petitioner and then petitioner demanded an enhanced rent and first respondent agreed to pay the same and also agreed to execute a rent deed and Rs.5000/- was paid as advance and at that time as demanded, Ext.P1 cheque was issued as a blank cheque and that too, as security for the receipt of Rs.5000/-. Learned Magistrate and learned Sessions Judge appreciated the evidence of Dws 1 and 2 and disbelieved their case. The argument of the learned counsel is that for the reason that the defence set up by petitioner is not acceptable, case of first respondent should not have been accepted. There were only two cases. One set up by first respondent that Ext.P1 cheque was issued towards payment of Rs.80,000/- which was part of Rs.1,00,000/- borrowed. The other case of the petitioner was that it was issued as a blank cheque towards the security of Rs.5000/- received. Inherently, the case set up by petitioner cannot be believed. If after petitioner became the owner of CRRP 3374/2008 4 the tenanted building, first respondent agreed to pay enhanced rent retrospectively and also to execute a rent deed incorporating the recitals and to pay the arrears, that arrears would definitely be more than Rs.5000/-, in which case, any prudent human being will not issue a blank cheque as contended by revision petitioner. I have absolutely no hesitation to hold that the defence case cannot be believed and was rightly found against by courts below. 6. Then the question is acceptability of the case set up by first respondent. Learned Magistrate and learned Sessions Judge analysed the evidence and found the evidence of PW1 credible and reliable. I do not find any reason to interfere with that factual finding. Evidence establish that Ext.P1 cheque was issued towards payment of legally recoverable debt. It is also proved that 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 N.I.Act. Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal and proper. 7. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court and a compensation of Rs.85,000/-. In such circumstances, I do not find any reason to interfere with the sentence also. Learned counsel then submitted that petitioner may be granted CRRP 3374/2008 5 three months time to pay the compensation as directed by learned Sessions Judge. 8. Revision petition is dismissed. Petitioner is granted three months time from today to pay the compensation as directed by learned Sessions Judge. Petitioner is directed to appear before learned Magistrate on 11.2.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-