IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.Rev.Pet.No. 3386 of 2008() ------------------------------ CRA.397/2006 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.289/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S): --------------------- JANARDHANAN, S/O. SIVARAMAN, T.C 27/1294 (2), RISHIMANGALAM, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- 1. MUSTHAFA, TC. 38/1048, POWER HOUSE ROAD, CHALAI, THYCAUD VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/10/2008, ALONG WITH CRRP NO. 3388 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NOs. 3386 & 3388 OF 2008 ............................................ DATED THIS THE 24th DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in C.C.288 of 2004 and C.C.289 of 2004 on the file of Judicial First Class Magistrate, Thiruvananthapuram. First respondent is the complainant in both the cases. C.C.288 of 2004 was taken cognizance by the learned Magistrate on a complaint filed by first respondent alleging that petitioner issued Ext.P1 cheque dated 17.8.2003 for Rs.35,600/- and Ext.P2 cheque dated 30.8.2003 for Rs.33,600/- towards the amount due on purchase of cement and when the cheques were presented, they were dishonoured under Ext.P3 and P4 for want of sufficient funds. In spite of Ext.P5 notice served on the petitioner, under Ext.P7 postal acknowledgment card, petitioner did not pay the amount and he thereby committed the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. Power of attorney holder of first respondent was examined as PW1 and Exts.P1 to P8 were marked. Petitioner was examined as DW1 and Exts.D1 to D4 were marked. Learned Magistrate, on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.70,000/- and in default, simple imprisonment for two months. Petitioner challenged the conviction CRRP 3386 & 3388/08 2 and sentence before Sessions Court, Thiruvananthapuram in Crl.A.398 of 2006. 2. In C.C.289 of 2004, case of first respondent is that towards the repayment of the amount due on purchase of cement, Ext.P1 and P2 cheques respectively for Rs.30,400/- dated 7.8.2003 and Rs.31,800/- dated 10.8.2003 were issued by the petitioner. When the cheques were presented, they were dishonoured under Ext.P3 and P4 for want of sufficient funds. In spite of Ext.P5 notice served on the petitioner under Ext.P7 postal acknowledgment card, petitioner did not pay the amount and thereby committed the offence. Petitioner pleaded not guilty. Power of attorney holder of first respondent was examined as PW1 and Exts.P1 to P8 were marked. Petitioner was examined as DW1 and Exts.D1 to D4 were marked. Learned Magistrate, on the evidence found petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.65,000/- and in default, simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.397 of 2006. 3. Learned Sessions Judge heard both the appeals together. As per common judgment, he dismissed the appeals, confirming the conviction and sentence. It is challenged in these revision petitions filed under Section 397 and 401 of Code of Criminal Procedure. CRRP 3386 & 3388/08 3 Crl.R.P.3386 of 2008 is against the conviction in C.C.289 of 2004 and Crl.R.P.3388 of 2008 is against the conviction in C.C.288 of 2004. 4. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and failed to note that first respondent has not established that Ext.P1 and P2 cheques, in the respective cases, were issued towards discharge of legally recoverable debts. It was argued that Ext.D1 to D4 establish that Ext.P1 and P2 cheques in the respective cases were issued in 2000 and at that time there was no date for the cheques as is clear from the cash bills issued by first respondent and therefore it is clear that the cheques could not have been issued in 2003 as claimed by first respondent and courts below were not justified in convicting the petitioner. It is also argued that in any case, sentence awarded is excessive and it is to be modified. 5. Case of the petitioner is that while working as a dealer of cement under first respondent, petitioner made a security deposit of Rs.1,00,000/- and was purchasing cement but subsequently in July 2000, first rspondent stopped the supply of cement and because of the strained relationship, the dishonoured cheques were subsequently created making use of the undated cheques issued to first respondent as security at the time of supplying cement taken delivery by petitioner even though the account was settled earlier and therefore CRRP 3386 & 3388/08 4 conviction is not sustainable. 6. On going through the depositions of the witnesses made available by the learned counsel and going through the judgments of courts below, I cannot agree with the submission of the learned counsel that appreciation of evidence was not proper. The very case of petitioner was that Ext.P1 and P2 cheques in the respective cases were issued as security, when cement was supplied by first respondent taken delivery by the petitioner. Though Ext.D1 to D4 bills were relied upon by petitioner to prove that when the cheques were issued, they were not dated, when PW1, the power of attorney who has personal knowledge with regard to the transactions, being an employee of first respondent, was examined, the bills were not confronted to PW1 and asked whether those are the bills and when the cheques then handed over, were they not recorded as undated. Even when petitioner was examined as DW1, I find no specific case that these writings made in Ext.D1 to D4 were made by first respondent or an employee of first respondent. Moreover, even if as seen in Ext.D1 to D4 were issued towards payment of the cement purchased thereunder, issuance of cheques would be for encashing them towards the value of cement supplied under the bills. Even if they were not dated at that time, an implied authority for the payee to put the date before encashment cannot be disputed. If in fact CRRP 3386 & 3388/08 5 petitioner had made a security deposit of Rs.1,00,000/- as is the case pleaded though denied by the first respondent, there was no necessity for issuing undated cheques each time of taking delivery of the cement. It is more so, because Ext.D1 to D4 are cash bills and such bills could only be issued only when the cash due to first respondent thereunder is received. Though it was contended that the amounts due under Ext.D1 to D4 bills were subsequently settled, there is no evidence to prove this fact. When the entire evidence is appreciated in the proper perspective, it cannot be said that the view taken by learned Magistrate and learned Sessions Judge is not a possible or reasonable view that could be taken on the evidence on record. Evidence establish that Exts.P1 and P2 cheques, in the respective cases, were issued by the petitioner towards the amount payable by him. Evidence also establish that the cheques were dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act in both the cases is perfectly legal and regular. 7. Then the question is with regard to sentence. So long as the sentence is not modified against the interest of the first respondent, it is not necessary to issue notice to him. Considering the nature of the offence, interest of justice will be met, if sentence is modified to CRRP 3386 & 3388/08 6 imprisonment till rising of court and converting the compensation to a fine with a direction to pay the amount covered by the cheques to first respondent as compensation under Section 357(1) of Code of Criminal Procedure, with a default sentence of simple imprisonment. 8. Revision petitions are allowed in part. In C.C.289 of 2004, conviction of petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.65,000/- and in default, simple imprisonment for two months. On realisation of the fine, Rs,63,000/- is be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 9. In C.C.288 of 2004, conviction of petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.70,000/- and in default, simple imprisonment for two months. On realisation of the fine, Rs,69,000/- is be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Compensation so realised is to be adjusted towards the decree in the civil suits, if the civil suits are in respect of the same claim. M.SASIDHARAN NAMBIAR, JUDGE lgk/-