IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 Crl.Rev.Pet.No. 3324 of 2008() ----------------------------------------- CRA.34/2006 OF ADDL. SESSIONS COURT-II, MAVELIKKARA CC.1240/2003 OF JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER/ APPELLANT/ACCUSED:- --------------------------------------------------------------- S.R.BAIJU, SREEMANDIRAM, KOLLACKADAVU P.O., CHENGANNUR. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. JAYADEVAN PILLAI, PUTHENPURAYIL, PUTHENCHANTHA P.O., VALLIKUNNAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3324 OF 2008 =========================== Dated this the 6th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act in C.C.1240/2003 on the file of Judicial First Class Magistrate, Mavelikkara. First respondent is the complainant. Case of first respondent was that petitioner borrowed Rs.1,25,000/- and in discharge of the liability issued Ext.P1 cheque drawn in his account maintained in Mavelikkara Branch of Federal Bank. When the cheque was sent for collection, it was dishonoured under Ext.P2 memo and Ext.P3 notice was sent demanding the amount covered by Ext.P1 cheque at his official address as well as residential address and notice sent to the official address was received under Ext.P3(a) and the residential was returned under Ext.P4 and petitioner did not pay the amount and thereby committed an offence under CRRP 3324/2008 2 section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. The defence taken was that petitioner had given blank signed cheques as security to Grant Kuries and Chitties a subscriber to the chitty at the time of prizing the chitty and Ext.P1 was misused by first respondent and he is not liable to pay any amount to first respondent and therefore he has not committed any offence. 2. Learned Magistrate on the evidence of Pws. 1 and 2 and Dws.1 and 2 and Exts.P1 to P6 and D1 found the petitioner guilty, convicted and sentenced him to simple imprisonment for one year and a compensation of Rs.1,35,000/- and in default simple imprisonment for six months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Mavelikara in Crl.A.34/2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this CRRP 3324/2008 3 revision. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel appearing for petitioner submitted that he is not challenging the conviction; but only the sentence and the sentence may be modified and petitioner may be granted three months time to pay the fine. 5. Though it was contended by petitioner that Ext.P1 cheque was issued as a signed blank cheque as security to Grant Kuries and Chitties at the time of prizing the chitty, learned Magistrate and learned Sessions Judge on appreciation of evidence found that petitioner issued Ext.P1 cheque towards discharge of the existing liability. Though petitioner had contended that Ext.P3(c) acknowledgement card does not relate to Ext.P3 notice but a notice sent by Grant Kuries and Chitties. As rightly found by courts below, if that notice was produced, petitioner could have atleast established the transaction with Grant CRRP 3324/2008 4 Chitties and Kuries. On the evidence on record, findings of learned Magistrate and learned Sessions Judge that Ext.P1 cheque was issued towards discharge of existing liability is perfectly legal and correct. It is not disputed that Ext.P1 cheque was dishonoured for want of sufficient funds. The evidence also establish that first respondent has complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. Conviction of the petitioner for the offence under section 138 of N.I.Act is therefore perfectly legal and proper. 6. Then the only question is with regard to the sentence. So long as sentence is not to be varied or modified as against the interest of first respondent, it is not necessary to issue notice to him. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is reduced to imprisonment till rising of court and a fine of Rs.1,36,000/- with a default sentence and providing compensation under section CRRP 3324/2008 5 357(1) of Code of Criminal Procedure. Criminal Revision Petition is partly allowed. Conviction is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.1,36,000/- to be paid within three months from today and in default simple imprisonment for three months. On realisation of the fine amount, Rs.1,36,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the learned 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