IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3817 of 2008() ------------------------------ CRA.276/2007 of SESSIONS COURT, KOTTAYAM CC.863/2004 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- K.N. KRISHNANKUTTY, PULIYAMPARAMBIL HOUSE, NEAR KURISUPALLY KARA, KAIPUZHA.P.O, NOW RESIDING AT KUNNATHEPARAMBIL, KAIPUZHA. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. K.V. VISWANATHAN, KARICKAL HOUSE, NEENDOOR.P.O, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3817 OF 2008 =========================== Dated this the 26th day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.863/2004 on the file of Judicial First Class Magistrate, Ettumanoor. Petitioner was convicted and sentenced to simple imprisonment for one month and a compensation of Rs.35,000/- and in default simple imprisonment for one month for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Kottayam in Crl.A.276/2007. Learned Additional 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 the petitioner was heard. CRRP3817/2008 2 3. The argument of the learned counsel is that there is no whisper in the complaint or in Ext.P3 notice sent by the first respondent demanding the amount covered by Ext.P1 cheque that there was a separate transaction in respect of purchase of building materials and when first respondent was examined as PW1 it was admitted that there was another transaction with regard to the purchase of building materials and in such circumstance, courts below should have accepted the case of the revision petitioner that Ext.P1 cheque was issued as a blank cheque towards the security of that transaction and revision petitioner had discharged that liability. It is therefore argued that conviction is not sustainable. Learned counsel also submitted that petitioner is a poor barber and is not financially capable of paying the amount and in such circumstance, in the interest of justice the sentence may be modified. 4. On hearing the learned counsel and going CRRP3817/2008 3 through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though as PW1, first respondent admitted that petitioner had purchased building materials from him, it is his specific case that Ext.P1 cheque has nothing to do with the said transaction. Apart from the suggestion that Ext.P1 cheque was issued as a blank signed cheque as security at the time of purchasing building materials, no evidence was adduced by the petitioner to establish that any such blank cheque was given. PW1 denied that case. Even when PW1 was cross examined, nothing was brought out to probablise the said case. If in fact Ext.P1 cheque was issued as a blank cheque and that too as a security for the outstanding liability of Rs.4,570/-, being the amount payable by the revision petitioner for purchasing building materials, on receipt of Ext.P3 notice demanding Rs.35,000/- due under Ext.P1 cheque petitioner would have sent a reply stating that Ext.P1 was not CRRP3817/2008 4 issued towards repayment of the amount as claimed by first respondent and instead was issued as a blank cheque. On going through the judgments of the courts below, the view taken by the learned Magistrate and learned Sessions Judge is definitely the possible and reasonable view that could be taken on the evidence. Therefore findings of the courts below that Ext.P1 cheque was issued towards discharge of legally recoverable debt is perfectly legal and is in order. It is also proved that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities as provided under sections 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. So long as the sentence is not varied or modified against the interest of the first CRRP3817/2008 5 respondent, it is not necessary to issue notice to first respondent. Ext.P1 cheque is for Rs.35,000/- and was issued on 6.5.2004. 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 the court in addition to a fine of Rs.35,000/- and in default simple imprisonment for one month. On realisation of fine, it is to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of the court in addition to a fine of Rs.35,000/- and in default simple imprisonment for one month. On realisation of fine, it is to be paid to first respondent as compensation under section 357(1) of the Code of CRRP3817/2008 6 Criminal Procedure. On the submission of the learned counsel appearing for the revision petitioner, revision petitioner is granted three months time from today to pay the fine. He is directed to appear before the Magistrate on 29.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006