IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 953 of 2007() ----------------------------- CRA.222/2004 of ADDL.DISTRICT AND SESSIONS JUDGE, KOZHIKODE CC.789/1998 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K. SIVADASAN, S/O.KUMARAN, PUTHIYA PARAMBATH HOUSE, POOVADANGATE, BEACH ROAD, VATAKARA. BY ADV. SRI.P.T.SREE NARAYANAN UNNI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T. RAMACHANRAN, S/O.KUNHIKANNAN, T.K. NIVAS, ATAKKATHERU, VATAKARA. PUBLIC PROSECUTOR SRI KAMAPPU SRI.B.KRISHNAN FOR R2 SRI.R.PARTHASARATHY FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 953 OF 2007 .............................................. DATED THIS THE 17th DAY OF DECEMBER, 2008 ORDER Revision petitioner is the accused and second respondent, the complainant in C.C.789 of 1998 on the file of Judicial First Class Magistrate, Vadakara. Revision petitioner was convicted and sentenced to simple imprisonment for four months and a compensation of Rs.42,000/- for the offence under Section 138 of N.I.Act. Revision petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.A.222 of 2004. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Case of revision petitioner is that courts below did not properly appreciate the evidence and should have found that Ext.P1 cheque was not issued by revision petitioner towards the discharge of an existing liability. 3. Judgments of courts below establish that evidence was properly appreciated. Revision petitioner is a practicing lawyer. Ext.P1 cheque is claimed to have been issued by revision petitioner towards repayment of Rs.42,000/- borrowed. Case of CRRP 953/2007 2 revision petitioner was that he had borrowed Rs.15,000/- through Advocate A.K.Rajeev from Manoharan and at the time of borrowal, Manoharan had obtained three blank signed cheques and one unsigned blank cheque was not returned and when the amount was repaid, the blank cheques were not returned and there was dispute regarding the interest and the unsigned blank cheque was misused by revision petitioner. Learned Magistrate and learned Sessions Judge appreciated the evidence of first respondent as PW1 and revision petitioner as DW2 as well as the evidence of DW1, Advocate Rajeev and accepted the case of first respondent and rejected the case of revision petitioner. Though revision petitioner had contended that signed blank cheques and unsigned blank cheque were given to one Manoharan, after obtaining a loan through DW1, when DW1 was examined, he has no such case. He did not say anything about the transaction with Manoharan. Therefore courts below were perfectly justified in disbelieving the defence case. After properly appreciating the evidence of revision petitioner, it was found that his case cannot be believed. I find no reason to interfere with the finding of fact. Evidence establish that revision petitioner had borrowed Rs.42,000/- and towards its CRRP 953/2007 3 repayment, issued Ext.P1 cheque. The fact that Ext.P1 cheque was dishonoured for want of sufficient funds and in spite of notice, revision petitioner did not pay the amount and first respondent had complied with all statutory formalities provided under Section 138 and 142 of N.I.Act are not disputed. In such circumstances, conviction of revision petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to the sentence. Though learned Magistrate sentenced revision petitioner to simple imprisonment for four months and it was confirmed by learned Sessions Judge, 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 fine of Rs.45,000/- and in default, simple imprisonment for two months. On realisation of fine, it shall be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and a fine of Rs.45,000/- and CRRP 953/2007 4 in default, simple imprisonment for two months. On realisation of fine, it shall be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Revision petitioner is granted one months time to pay the compensation. He is directed to appear before learned Magistrate on 22.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-