IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 1282 of 2003(C) ------------------------------- CRA.261/2002 of SESSIONS COURT, THRISSUR CC.132/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- P.A.SHIYALA, PULIKKAL HOUSE, SHIYA TRAVELS, SECOND FLOOR, MUNICIPAL STAND BUILDINGS, SOUTH CHALAKUDY. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. D.SREENIVASAN, “GOKUL”, KRISHAN AYYAR LANE, CHEMBUKKAVU, THRISSUR. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENAKULAM. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 R2 PUBLIC PROSECUTOR BY P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1282 OF 2003 --------------------------------------------- Dated 2nd August, 2010 O R D E R Revision petitioner, the accused in C.C.132/1998 On the file of Chief Judicial Magistrate, Thrissur was convicted and sentenced to simple imprisonment for six months and a fine of Rs.5,000/- for the offence under Section 420 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions court, Thrissur in Crl.A.261/2002. Learned Sessions Judge on re-appreciation of evidence, confirmed the conviction and modified the sentence to simple imprisonment for three months and fine of Rs.1,60,000/- with a direction to pay the same on realisation to first respondent as CRRP 1282/03 2 compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that according to the first respondent Rs.80,000/- was borrowed by the petitioner on 1/5/1996 and a post dated cheque was issued with a date 1/7/1996 for its repayment on 20/5/1996 and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. First respondent filed a complaint, which was taken cognizance by the learned Magistrate as S.T.1684/1996. But finding that the cheque was not issued in the account maintained by the first respondent, petitioner was acquitted of the offence under Section 138 of Negotiable Instruments Act. It is CRRP 1282/03 3 thereafter complaint was filed alleging an offence under Section 420 of Indian Penal Code was committed. It was argued that when there is no case in the complaint earlier filed that the cheque was issued when promissory note was returned and so offence under Section 420 is not attracted. As there is no case that when the amount was borrowed on 1/5/1996, there was a dishonest intention to cheat. Learned counsel finally submitted that in any case, modified sentence awarded by the learned Sessions Judge is excessive. 4. Learned counsel appearing for the first respondent argued that learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction or the sentence. 5. Case of the first respondent is that CRRP 1282/03 4 petitioner borrowed Rs.80,000/- on 1/5/1996 and at that time petitioner executed a demand promissory note as well as a receipt for that amount. It is his case that when the amount was demanded, petitioner issued Ext.P1 cheque and induced first respondent to part with promissory note and receipt which were given earlier, making him believe that the cheque was issued in the account maintained by him. Later when it was dishonoured only, first respondent came to know that the cheque was drawn in the account maintained by the first respondent. Though argument of the learned counsel is that when the amount was borrowed on 1/5/1996 there was no dishonest intention as born out from the evidence and evidence establish that when the amount was borrowed, petitioner executed demand promissory note and also handed over the receipt for the same. Evidence show CRRP 1282/03 5 that when the cheque was issued by the petitioner, first respondent returned the promissory note as well receipt. Therefore, when cheque was accepted by the petitioner, he was induced to believe that the cheque was being issued in the account maintained by the first respondent. On that inducement first respondent parted with the demand promissory note as well as receipt by which he could have realised the amount paid on 1/5/1996. Evidence establish that due to the inducement made on 20/5/1996, first respondent was persuaded to accept the cheque by parting with the promissory note and it was handed over earlier establish that petitioner had a dishonest intention to cheat. In such circumstances, conviction of the petitioner for the offence under Section 420 of Indian Penal Code is perfectly legal and warrants no interference. CRRP 1282/03 6 6. Then the only question is regarding the sentence. Section 420 of Indian Penal Code provides for a sentence of imprisonment which may extend to seven years and also fine. Therefore, both substantive sentence and fine are mandatory. 7. Though learned Magistrate awarded only a fine of Rs.5,000/-, learned Sessions Judge while reducing the substantive sentence, enhanced fine to Rs.1,60,000/- with a direction that on realisation, it is to be paid to the first respondent. Learned Sessions Judge did not find any reason for fixing, double the amount covered by the dishonoured cheque as compensation. Cheque was issued on 20/5/1996. 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 fine of Rs.1,00,000/- CRRP 1282/03 7 and in default simple imprisonment for six months. Revision is allowed in part. Conviction of the petitioner for the offence under Section 420 of Indian Penal Code is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and fine of Rs.1,00,000/- and in default simple imprisonment for six months. On realisation of the fine, Rs.95,000/- shall be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the Chief Judicial Magistrate, Thrissur on 11/8/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.