IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 4192 of 2008() ------------------------------ CRA.260/2007 of SESSIONS COURT (ADHOC-II), MANJERI CC.187/2006 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- P.KUNHIMOHAMMED, S/O. MOYINKUTTY (LATE), PALAKKATHODIKA HOUSE, KALARTHODU, ELAMKUR P.O., MANJAPATTA, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. YOGAKSHEMA KURIES AND LOANS PRIVATE LIMITED, MANJERI, BRANCH MANAGER T. MEERI KRISHNAN JASEEMA TOURIST HOME, MANJERI P.O., 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, JUDGE ------------------------------------------------- CRL.R.P.NO. 4192 OF 2008 -------------------------------------------------- Dated this the 2 nd day of January, 2009 O R D E R Revision petitioner, who was concurrently convicted for the offence under section 138 of Negotiable Instruments Act, is challenging the conviction and sentence in this revision. First respondent is the complainant. The case of the first respondent is that revision petitioner along with his children Noushadali and Abdul Nazar availed a loan of Rs.1,00,000/- executing a promissory note and towards repayment of that amount with interst, revision petitioner issued Ext.P2 cheque for Rs.1,43,553/- dated 6.7.2006 drawn in his account and when the cheque was presetend for encashment, it was dishonoured as 'account was closed' and 'the cheque reported lost' and in spite of Ext.P5 notice served on the revision petitioner demanding the amount covered by Ext.P2 cheque, it was not paid and thereby revision petitioner committed an offence under section 138 of Negotiable Instruments Act. Revision petitioner at the time of questioning under section 313 of Cr.P.C. contended that he had given Ext.P2 cheque to his children for payment of the amount borrowed by them and revision petitioner was not aware that the amount was borrowed from first respondent and therefore revision petitioner cannot be convicted for the offence under section 138 of N.I. Act. CRRP4192/2008 2 Learned Magistrate on the evidence of PW1, the Manager of the first respondent, found that Ext.P2 cheque was issued towards repayment of the amount borrowed with interest and it was dishonoured as account closed and there was no sufficient amount in the account of the revision petitioner and therefore he committed the offence under section 138 of Negotiable Instruments Act. Learned Sessions Judge on reappreciation of evidence confirmed the findings and the conviction. The sentence was modified to imprisonment till rising of Court and a compensation of Rs.1,43,553/- and in default simple imprisonment for two months. Learned Sessions Judge also confirmed the order directing revision petitioner to pay a cost of Rs.500/- under section 359 of Code of Criminal Procedure. The conviction and sentence is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel is that there is no evidence to prove that Ext.P2 cheque was issued towards discharge of any debt or liability of the revision petitioner and therefore the conviction is not sustainable. The learned counsel also argued that the sentence awarded is excessive and in any case default sentence cannot be awarded for the compensation under section 357(3) of Cr.P.C. CRRP4192/2008 3 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the conviction. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 in the light of the materials produced and found that revision petitioner along with his children Noushadali and Abdul Nazar had borrowed Rs.1,00,000/- undertaking to repay the same with interest and towards repayment of the amount borrowed, with interest, issued Ext.P2 cheque drawn in the account maintained by the revision petitioner. Though revision petitioner raised a contention at the time of questioning under section 313 of Cr.P.C. that the cheque was issued not to the first respondent as such, but was given to his children to enable them to pay the amount borrowed, Courts below did not accept the contention. The Courts below found that when PW1 was cross-examined, the case of the revision petitioner was not that the cheque was given to the children but it was issued to the first respondent as security for the loan obtained by the borrower. But that suggestion is proved to be incorrect by his own statement when questioned under section 313 of Cr.P.C. There is no evidence even to probablise the case that Ext.P2 cheque was issued either to the children as stated at the time of questioning under section 313 of Cr.P.C. or that it was given as security. Therefore Courts below were justified in holding, based on CRRP4192/2008 4 the evidence of PW1 that Ext.P2 cheque was issued by the revision petitioner towards repayment of the amount borrowed with interest from the first respondent. Nothing was pointed out to interfere with the reliability of the evidence of PW1, which was accepted by the trial Court as well as the appellate Court. Appreciation of evidence by the Courts below was proper and in any case not perverse. Evidence establish that the cheque was dishonoured as the account was closed. In view of the Division Bench decision of this Court in Vathsan Vs. Japahari (2003(3) KLT 972), which is binding on question whether the account was closed prior to the date of issuance of the cheque is immaterial and offence under section 138 of N.I. Act is attracted. Therefore conviction of the revision petitioner for the offence under section 138 of N.I. Act is perfectly legal and warrants no interference. 5. Then the question is whether the sentence warrants any interference. Learned Sessions Judge modified the sentence to imprisonment till rising of Court in addition to a compensation for the amount covered by the dishonoured cheque. I find no reason to interfere with the sentence. But in view of the declaration of law by the Apex Court that when compensation is awarded under section 357 (3) of Cr.P.C., there cannot be a default sentence, the direction to undergo default sentence for the compensation is illegal and to that extent the sentence is to be modified. CRRP4192/2008 5 Revision is allowed in part. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act and the sentence to undergo imprisonment till rising of Court and payment of compensation of Rs.1,43,553/- is confirmed. The direction to undergo default sentence for non payment of compensation is set aside. Revision petitioner is directed to appear before the Magistrate on 10.2.2009. M. SASIDHARAN NAMBIAR, JUDGE okb