IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3503 of 2008() ------------------------------ CRA.678/2006 of ADDL.SESSIONS COURT (ADHOC-I), ALAPPUZHA CC.332/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALAPPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- JOGGY JOSEPH, S/O. JOSEPH, AGED 54 YEARS, CHERUKARA HOUSE, SUBRAMANYAPURAM, AVALOOKUNNU P.O., ALAPPUZHA. BY ADV. SRI. R.AZAD BABU RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ------------------ 1. SUMATHY SURENDRAN, AGED 60 YEARS, SARASWATHI BHAVAN, THATHAMPALLY P.O., KARUKAYIL WARD, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3503 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in C.C.332 of 2004 on the file of Judicial First Class Magistrate-II, Alappuzha. Case of the first respondent was that petitioner borrowed Rs.1,00,000/- in November 2003 and when demanded, towards its repayment issued Ext.P1 cheque drawn in his account maintained in Alappuzha branch of State Bank of Travancore dated 18.10.2004. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Ext.P3 notice was sent demanding the amount covered under Ext.P1cheque. It was served on petitioner under Ext.P4. He did not pay the same and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. The defence case was that petitioner had issued a blank cheque in 2001 and Ext.P1 cheque was not issued towards repayment of Rs.1,00,000/- and he did not commit the offence. First respondent was examined as PW1. Exts.P1 to P4 were marked. Petitioner was not examined and Dws 1 to 3 were examined and Exts.D1 to D7 were marked. Learned Magistrate CRRP3503/08 2 on appreciation of evidence found that Ext.P1 cheque was issued towards repayment of amount as deposed by PW1 and was not issued as a blank cheque as claimed by petitioner. It was also found that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. Petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.1,00,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl. Appeal 678 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the Court, in addition to a fine of Rs.1,00,000/- with a direction to pay the same on realisation to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner did not challenge the conviction but sought four months time to pay the fine. CRRP3503/08 3 4. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 and Dws 1 to 3 in the proper perspective. It was found that Ext.P1 cheque was not issued as a blank cheque, as claimed by petitioner or as sought to be proved by evidence of Dws 1 to 3, but was issued towards repayment of the amount borrowed from first respondent. I do not find any reason to interfere with that factual finding. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds and 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 perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the Court and a fine of Rs.1,00,000/- and in default simple imprisonment for three months with a direction to pay the fine on realisation, to first respondent as compensation. In such circumstances I do not find any illegality in the sentence also. Revision is dismissed. Petitioner is granted four months time from today to pay the fine as awarded by Sessions Judge. CRRP3503/08 4 Petitioner is directed to appear before Judicial First Class Magistrate-II, Alappuzha on the expiry of four months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-