IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 3666 of 2008 ---------------------------------------- CRL.A.606/2007 OF ADDL. DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKKODE. ST.2109/2007 OF JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE. .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: --------------------------------------------------------------------- T.P.SUBRAMANIAN, AGED 39 YEARS S/O.LATE KRISHNAN NAIR, NANDANAM HOUSE, VARAPPURATH, CHATHAMANGALAM P.O., KOZHIKODE. BY ADV. SRI.K.K.JAYARAJ NAMBIAR. RESPONDENTS/ RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. MANOJKUMAR, S/O.MADHAVAN NAIR, AZHINHALATH HOUSE, CHATHAMANGALAM PO. R.E.C., KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3666 OF 2008 =========================== Dated this the 14th day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.2109/2007 on the file of Judicial First Class Magistrate-II (Mobile), Kozhikode. First respondent filed the complaint contending that on 10.4.2005 petitioner borrowed Rs.25,000/- and towards its repayment issued Ext.P1 cheque dated 23.5.2005 drawn in his account maintained in Kozhikode Branch of State Bank of India and when the cheque was presented under Ext.P2 it was dishonoured for want of sufficient funds and inspite of Ext.P3 notice served on the petitioner under Ext.P4, he did not repay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent examined as PW1 and Ext.P1 to P4 were marked. On the side of the petitioner a witness was examined CRRP 3666/2008 2 as DW1. Learned Magistrate on the evidence found the evidence of PW1 credible and reliable and convicted the petitioner for the offence under section 138 of Negotiable Instruments Act. He was sentenced to imprisonment till rising of court and a compensation of Rs.25,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.506/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that DW1 who is none other than the brother-in-law of first respondent was examined and evidence of DW1 establishes that revision petitioner borrowed Rs.5,000/- in 2000 and a cheque was issued as security which was not CRRP 3666/2008 3 returned and on the request of the revision petitioner, DW1 had intervened and first respondent had admitted that some amount towards interest is due and therefore the conviction is not sustainable. It was also argued that Ext.P1 cheque is a typewritten cheque which may not the case in the normal course and if the evidence is properly appreciated it can only be found that Ext.P1 cheque was not issued to first respondent, much less towards discharge of any legally recoverable debt. 4. On hearing the learned counsel and going through the judgments, I cannot agree with the submission of the learned counsel that appreciation of evidence was not proper or perverse. When first respondent was examined there was no case for the revision petitioner that his brother-in-law DW1 had intervened in the dispute or any incident as spoken to by DW1 had taken place. If in fact Ext.P1 cheque was not issued to first respondent towards repayment of the amount, and was issued as security for a loan obtained in 2000, CRRP 3666/2008 4 on receipt of Ext.P4 notice, in the ordinary course revision petitioner would have sent a reply. The fact that no reply was sent cast serious doubt on the genuineness of the plea raised by the petitioner. Moreover a reading of the deposition of DW1, which was read over by the learned counsel, makes it clear that he is only deposing in favour of first respondent either because of his affinity towards the revision petitioner or enmity towards the first respondent. In any case his evidence cannot be relied on especially when such a case was not put to PW1 while he was cross examined. When the entire evidence is appreciated, the view taken by the courts below, is the only possible and reasonable view that could be taken. As it is proved that Ext.P1 cheque was issued towards repayment of the amount borrowed and it 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, his conviction is CRRP 3666/2008 5 perfectly legal. 5. Then the only question is regarding the sentence. Learned Magistrate sentenced petitioner only to imprisonment till rising of court, in addition to compensation which is also only for the amount covered by the dishonoured cheque. In such circumstance, I find no reason to interfere with the sentence also. Revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006