IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 3046 of 2008() ------------------------------ CC.966/2003 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CRA.710/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): 1 ---------------------- R.SURESH, AGED 37, S/O RAMACHANDRAN, C.C.V/966, GUJARATHY ROAD,, KOCHI -2. BY ADV. SRI.V.N.VASANTHA KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 2. MRS. B.BALSALA, W/O A.J PETER, KAMBAKKARAN VEEDU, ST.JOHN PATTOM VELI, FORT KOCHI, COCHIN -1. PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3046 OF 2008 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in C.C.966 of 2003 on the file of Judicial First Class Magistrate, Kochi. Petitioner was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.25,000/-. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.710 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to a fine of Rs.18,000/- and in default, simple imprisonment for one year. On realisation of the fine, it was directed to be paid to first respondent as compensation. The revision is filed, challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. The argument of learned counsel is that Ext.P1 cheque was not issued towards repayment of any legally recoverable debt and evidence of Pws 1 to 3 establish that Ext.P1 cheque was obtained by petitioner after lodging a complaint before police and under threat and therefore the conviction and sentence is not CRRP 3046/2008 2 sustainable. It was argued that evidence of first respondent as PW1 establish that she was a surety to a loan availed of by petitioner and for non-payment of the loan, steps were taken to recover the same from the salary of first respondent and other sureties and evidenced by Ext.D1 certificate issued by the bank, part of the money was recovered from the salary of petitioner and as evidenced by Ext.D2(a) entry of the petition register maintained at the police station, a complaint was filed against the petitioner and in that complaint, petitioner was forced to part with the cheque and therefore conviction is not sustainable. 3. On hearing the learned counsel and going through the evidence of PW1, Dws 1 to 3 and Exts.D1 and D2(a) made available by the learned counsel appearing for petitioner, I cannot agree with the submission of learned counsel that appreciation of evidence was perverse. Though it is the case of petitioner that Ext.P1 cheque was procured by filing a police complaint, even when petitioner was examined as DW1, I find no case for him that Ext.P1 cheque was issued from the police station pursuant to the complaint. Ext.D2(a) entry in the petition register also does not show that any cheque was handed over. Learned Magistrate analysed the evidence of PW1 and Dws 1 to CRRP 3046/2008 3 3 and found that the evidence of PW1 is credible and Ext.P1 cheque was issued towards repayment of the amount borrowed. Learned Sessions Judge, on reappreciation of evidence, confirmed that finding. Evidence also establish that Ext.P1 cheque, when presented for encashment, 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 N.I.Act. Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to sentence. Though learned Magistrate sentenced petitioner to simple imprisonment for one year, learned Sessions Judge modified the sentence to a fine and that also only for Rs.18,000/- with a default sentence of imprisonment for one month. I do not find any reason to interfere with the sentence also. Revision is therefore dismissed. Petitioner is granted two months time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-