IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 128 of 2003 -------------------------------------------- CRA.633/2001 of II ADDL.SESSIONS COURT, ERNAKULAM CC.476/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER/APPELLANT/ACCUSED: P.K.SATHEESAN, PERUMPILLIL HOUSE, THIRUVANIYOOR, PUTHENCRUZ. BY ADV. SRI.T.RAJESH RESPONDENTS/RESPONDENT/COMPLAINANT: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. 2. K.V.GREGORIOUS, KEEZHATHUMATTATHIL HOUSE, VADAVUKODU P.O., ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R1 ADV. SRI.GEO PAUL FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 364/2003 IN CRRP 128/2003 DISMISSED 1.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.128 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.476/1998 on the file of Judicial First Class Magistrate's Court, Kolenchery, was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.633/2001. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Petitioner would contend that courts below did not properly appreciate the evidence and on the evidence, conviction of the petitioner is not sustainable. 3. Learned counsel appearing for the petitioner was heard. CRRP 128/03 2 4. Second respondent/complainant lodged the complaint, which was taken cognizance by the learned Magistrate for the offence under Section 138 of Negotiable Instruments Act, contending that petitioner borrowed Rs.11,000/- and in discharge of the same, issued Exhibit P1 cheque dated 10.5.1998, drawn in his account maintained at Thiruvaniyoor Branch of Mamala Service Co-operative Bank and when the cheque was presented for encashment through Vadavukodu Branch of Farmers' Service Co-operative Bank, Puthencruz Branch, it was dishonoured for want of sufficient funds and second respondent sent Exhibit P3 notice demanding the amount, which was received by the petitioner under Exhibit P4 acknowledgment, but he failed to pay the amount and thereby committed the offence. 5. Petitioner pleaded not guilty. Second respondent himself was examined as PW1 and marked Exhibits P1 to P4. Petitioner did not adduce any evidence. It is based on that evidence, learned CRRP 128/03 3 Magistrate convicted the petitioner, which was upheld by the learned Additional Sessions Judge. 6. I have gone through the evidence of PW1. Nothing was pointed out to disbelieve the evidence of PW1. Evidence establishes that petitioner borrowed Rs.11,000/- and in discharge of the same, issued Exhibit P1 cheque. It is also in evidence that during the pendency of the proceedings, Rs.2,000/- was received by the second respondent from the petitioner. In such circumstances, it cannot be disputed that Exhibit P1 cheque was not issued in discharge of an existing debt. 7. The fact that the cheque was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities are not disputed. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 8. Then the question is regarding the sentence. Learned Magistrate sentenced the petitioner to CRRP 128/03 4 simple imprisonment for one month and a compensation of Rs.9,000/- to be paid to the second respondent. Learned Additional Sessions Judge also confirmed the same. 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 court and a compensation of Rs.12,000/- to be paid to the second respondent and in default, simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of court and a compensation of Rs.12,000/- to be paid to the second respondent and in default, simple imprisonment for one month. If petitioner has deposited any amount before the Magistrate as directed by this Court for suspension of the sentence, he need deposit only the balance amount CRRP 128/03 5 and second respondent is entitled to withdraw the same. Petitioner is also permitted to pay the compensation directly to the second respondent and produce the receipt and establish before the Magistrate that compensation is paid. Petitioner is directed to appear before Judicial First Class Magistrate, Kolenchery on 05.08.2010. The Magistrate is directed to execute the sentence. 1st July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 128/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.128 of 2003 -------------------------- ORDER 1st July, 2010