IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3369 of 2008() ------------------------------ CRA.263/2005 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK NO.I,THRISSUR. ST.3971/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): REVN. PETITIONER/APPELLANT/ACCUSED(NOT IN CUSTODY) ----------------------------------------------------------------------- SUJANA RAVINDRAN,W/O.RAVINDRAN, MUDAVANGATHIL HOUSE,P.O.CHAZHOOR,THRISSUR. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): RESPONDENTS/RESPONDENTS/COMPLAINANTS/STATE. --------------------------------------------------------------------------------- 1. YOGAKSHEMAM KURIES & LOANS LTD., ANTHIKKAD REP. BY MANAGER-CUM-IN CHARGE M.K.PRABHAKARAN. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3369 OF 2008 =========================== Dated this the 15th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of first respondent is that towards repayment of Rs.20,000/- borrowed agreeing to pay interest at the rate of 21% petitioner issued Ext.P1 cheque drawn in his account maintained by him and when the cheque was presented for encashment it was dishonoured under Ext.P3 for want of sufficient funds and Ext.P5 notice was sent demanding the amount covered by the dishonoured cheque and though petitioner received the same, he did not pay and instead sent Ext.P8 reply denying the liability and he thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. The manager of first respondent was examined as PW1 and Exts.P1 to P12 were marked. On CRRP 3369/2008 2 the side of the petitioner, Ext.D1 was marked and no other evidence was adduced. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment till rising of the court and a compensation of Rs.48,372/-. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.263/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner argued that courts below did not properly appreciate the evidence and should have found that petitioner is not liable to pay Rs.48,372/- covered by the cheque and therefore by its dishonour he did not commit an offence under section 138 of N.I. Act. Learned counsel also argued that in any case because of his financial conditions, petitioner may CRRP 3369/2008 3 be granted three months time to pay the amount. 4.Though learned counsel argued that courts below did not properly appreciate the evidence, on going through the judgments of the courts below it cannot be said that appreciation of evidence was not proper or legal. Evidence of PW1 establish that Ext.P1 cheque was issued towards discharge of the existing liability namely the amount borrowed by petitioner with interest. Learned counsel argued that O.S.3086/2003 was filed before the Munsiff Court, Thrissur for realisation of the amount as evidenced by Ext.D1 and the suit was decreed and the amount was realised from one of the sureties. But there is no material to establish that fact. The evidence establish that Ext.P1 cheque was issued towards repayment of the amount due. Evidence also establish that the cheque was dishonoured for want of sufficient funds. It is also proved that first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. CRRP 3369/2008 4 Conviction of the petitioner for the offence under section 138 of N.I. Act is therefore legal and proper. 5. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioner to imprisonment till rising of the court in addition to a compensation of Rs.48,372/- with a default sentence of two months. Learned Sessions Judge modified the sentence. In view of the declaration of law by the Apex Court that when compensation is awarded under section sub section (3) of Section 357, a default sentence cannot be awarded, to that extent, the sentence warrants interference. The sentence is therefore modified to imprisonment till rising of court and a fine of Rs.48,372/- and in default simple imprisonment for one month. On realisation of the fine it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. If the suit is in respect of the amount covered by Ext.P1 cheque, first respondent is liable to adjust CRRP 3369/2008 5 the amount towards the decree in the suit. Petitioner is granted three months time to pay the fine. Criminal Revision Petition is therefore partly allowed. Conviction is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.48,372/- to be paid within three months from today and in default simple imprisonment for one month. On realisation of the fine it is to be paid to first respondent as compensation under section 375(1) of Code of Criminal Procedure. Petitioner is directed to appear before the Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006