IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3342 OF 2008() ------------------------------ CRA.1188/2006 of SESSIONS COURT, THIRUVANANTHAPURAM ST.3404/2005 of JUDL. MAGISTRATE FIRST CLASS COURT-I, NEDUMANGAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- BALAN, SHIJU BHAVAN, MANALAYAM, MALAMUKAL, KODUNGANOOR P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------- 1. SAJU G. CHELAPADEN, CHELAPADEN HOUSE, VAZHOTTUKONAM, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3342 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-I, Nedumangad in S.T.3404 of 2005 and sentenced to simple imprisonment for four months apart from a compensation of Rs.1,00,000/- under section 357(3) of Cr.P.C. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl. Appeal 1188 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court and a fine of Rs.1,00,000/- and in default, simple imprisonment for three months with a direction to pay the fine as compensation on realisation to first respondent/complainant. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel vehemently argued that neither CRRP3342/08 2 Ext.P3 notice sent under sub section (b) of section 138 of N.I.Act nor the compliant disclose the original transaction for which Ext.P1 cheque was issued and therefore the evidence of PW1 that first respondent issued Ext.P1 cheque towards the amount due from the petitioner should not have been accepted by the Courts below. It was argued that Ext.P1 cheque was issued as a blank cheque to DW3, the brother-in-law of first respondent, and it was misused by first respondent by entering his name as the payee and the amount by typing and therefore the conviction of the petitioner is not sustainable. Learned counsel also argued that the broad probabilities of the case were not properly appreciated and if as per the evidence of PW1, petitioner brought the cheque typed before first respondent and executed it and handed it over to first respondent, that version should not have been accepted by Courts below because of its intrinsic improbability and therefore conviction is not sustainable. Learned counsel finally submitted that if the conviction is to be confirmed, petitioner may be granted three months time to pay the fine awarded by the learned Sessions Judge. 4. It is true that Ext.P3 notice and the complaint does not disclose what was the original transaction. But while CRRP3342/08 3 appreciating the said omission the fact that section 138 does not contemplate a pleading with regard to the original transaction is to be borne in mind. It is true that Apex Court later held that to convict a person under section 138, the complainant has to prove that a legally recoverable debt is due to first respondent. But that does not mean that the notice sent under section 138(b) or the complaint should contain a pleading with regard to the original transaction. Question is whether on the evidence on record learned Magistrate and learned Sessions Judge were justified in holding that Ext.P1 cheque was issued by the petitioner towards repayment of a legally recoverable debt. Learned counsel vehemently argued that it is improbable that a typed cheque would be taken by the petitioner to get a loan from first respondent and this aspect was not properly appreciated by the Courts below. It was also argued that though Courts below had given undue importance to a mistake committed at the time of examination of the petitioner as DW4 as he denied the signature in Ext.P1 cheque, when in fact even at the time of questioning under section 313 of Cr.P.C. petitioner had admitted the signature, it was argued that fact that DW3 the brother-in- law of first respondent did not support the petitioner is not a CRRP3342/08 4 reason to disbelieve the evidence of DW4 or the case of the petitioner and on the totality of the evidence Courts below should have found that petitioner had discharged the burden cast under section 139 of N.I.Act especially when first respondent did not plead and prove the original transaction. 5. True, the failure of the petitioner to prove his case is not a ground to accept the case of first respondent that Ext.P1 cheque was issued towards the amount due. But as rightly found by Courts below petitioner himself was examined as DW4. Deposition of DW4 made available by learned counsel makes it absolutely clear that Ext.P1 cheque was issued towards the amount due to first respondent. A specific question was put to DW4 by the counsel appearing for first respondent as to whether the amount involved in the case is the one borrowed by the petitioner at the time when he was running the ration shop. The answer was affirmative. In the light of that evidence I do not find any reason to interfere with the conviction. Ext.P1 cheque was issued towards the amount due to first respondent as found by Courts below. There is no case that the cheque was not dishonoured for want of sufficient funds or first respondent has not complied with the statutory formalities under sections 138 CRRP3342/08 5 and 142 of N.I.Act. In such circumstances conviction of the petitioner is perfectly legal and correct. 6. Then the question is whether the sentence warrants modification. Learned Sessions Judge modified the sentence to imprisonment till rising of Court in addition to fine for the amount covered by dishonoured cheque. In such circumstances there is no necessity to interfere with the sentence also. But on the submission of the learned counsel appearing for petitioner, he is granted two months time to pay the fine and to appear before the Magistrate as directed by learned Sessions Judge. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-