IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 434 of 2001() ----------------------------- CRA.66/1999 of SESSIONS COURT, KOTTAYAM ST.50/1994 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- K.V.BHARATHAN, S/O.VELU, CONTRACTOR, KOOTTALLICKAL VEEDU, CHITTILAPPALLI DESOM, CHITTILAPPALLI VILLAGE, THRISSUR TALUK. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU SRI.SURIN GEORGE IPE RESPONDENT(S)/COMPLAINANT AND STATE: -------------------------------------------- 1. K.M.FRANCIS, MANAGER, HINDUSTAN NEWSPRINT LTD., MAVELLOOR P.O., VAIKOM TALUK 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. ADV. SRI.BECHU KURIAN THOMAS FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.R.P.NO.2054/01 IN CRRP 434/01 DISMISSED 18/5/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.434 OF 2001 --------------------------------------------- Dated 18th May, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act in S.T.50/1994 by Judicial First Class Magistrate, Vaikom. Petitioner challenged the conviction and sentence before Sessions court, Kottayam in Crl.A.66/1999. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months and fine of Rs.85,000/- which is to be paid to the first respondent as compensation under section 357(3) of Code of Criminal Procedure. Revision petition is filed CRRP 434/01 2 challenging the conviction and sentence. 2. Petitioner would contend that courts below did not properly appreciate the evidence and should not have accepted the oral evidence of Pws.1 and 2. It is contended that evidence is insufficient to prove that the amount covered by the dishonoured cheque was due from the petitioner to first respondent and therefore, on the failure to prove that the dishonoured cheque was issued for consideration, conviction is bad. It is contended that in any case the sentence awarded is excessive. 3. Learned counsel appearing for the petitioner was heard. 4. Argument of the Learned counsel is that though Ext.P1 agreement contains endorsement made by the petitioner that CRRP 434/01 3 Rs.1,25,000/- is payable by the petitioner to first respondent and the dishonoured cheque was also issued towards that amount, the said endorsement was made by compulsion and the cheque was got executed under threat and duress and therefore, the courts below should not have convicted the petitioner. 5. Petitioner is admitting that he had agreed to construct a building for first respondent and for that purpose Ext.P1 agreement was entered into. Ext.P1 shows that whenever payment is made by the first respondent and received by the petitioner, he used to make endorsements and various amounts were paid on different dates from 12/11/1991 to 17/11/1992. Ext.P1 also contains an endorsement made by the petitioner on 23/6/1993 to the effect that as he is not in a position to CRRP 434/01 4 complete the construction, accounts were settled and Rs.1,25,000/- was the amount found payable by the petitioner as received in excess of the work undertaken by him and he is prepared to pay the same and towards its payment two post dated cheques dated 23/8/1993 and 26/10/1993 were issued. Ext.P2 dishonoured cheque is the second cheque referred to therein namely, cheque No.28759 dated 26/10/1993. It is not disputed that cheque was issued by the petitioner in the account maintained by him. As evidenced by Exts.P3 and P4, when the cheque was presented for encashment through Aluva Branch of Federal Bank where first respondent has an account, cheque was dishonoured for want of sufficient fund. Though first respondent sent a notice demanding the amount covered by the dishonoured cheque immediately, as CRRP 434/01 5 evidenced by Ext.P7 notice, it was received by the petitioner and admittedly no reply was sent. Having admitted the relevant endorsement in Ext.P1 which shows that as on 23/6/1993 petitioner is liable to return Rs.1,25,000/- received in excess for which Ext.P2 and another cheque were issued by the petitioner, petitioner would contend that cheques were issued and endorsement were made due to threat and duress. As rightly found by the courts below, if the endorsement dated 23/6/1993 was made and the dishonoured cheque was issued due to any threat or compulsion, petitioner would have at least sent a notice on receipt of notice demanding the amount covered by the dishonoured cheque even if he did not take appropriate steps immediately, if the cheque was procured and endorsements were CRRP 434/01 6 obtained under any threat or pressure. Apart from the allegations there is no evidence to prove that endorsement in Ext.P1 was made or the dishonoured cheque was issued due to any threat or compulsion. Courts below rightly appreciated the evidence and found that Ext.P1 cheque was issued towards discharge of existing liability. As it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly correct. 6. Then the only question is regarding sentence. Learned Sessions Judge though upheld the substantive sentence, reduced the fine from Rs.1,30,000/- to Rs.85,000/- with a direction that on realisation it shall be paid CRRP 434/01 7 to the first respondent. Ext.P1 cheque is for Rs.65,000/-. 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 compensation of Rs.85,000/- and in default simple imprisonment for three months. Revision is allowed in part. Conviction for the offence under Section 138 of Negotiable Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.85,000/- to first respondent and in default simple imprisonment for three months. Petitioner is directed to deposit the amount before the learned Magistrate or pay it directly to the first respondent and produce the receipt before the Magistrate and satisfy CRRP 434/01 8 the Magistrate that compensation is paid. Petitioner is directed to appear before the learned Magistrate on 28/6/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.