IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 3530 of 2008() ----------------------------------------- CRA.26/2006 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK (ADHOC), MAVELIKKARA CC.544/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVISION PETITIONER/APPELLANT/ACCUSED -------- ---------------------------------------------------------- S.K.VIJAYAN, INCOMES INDUSTRIAL CONSULTANCY, COURT ROAD, CHENGANNUR. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. GOPALAKRISHNAN NAIR, GOKULAM, PUTHENKAVU, CHENGANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 ADV. SRI.IYPE JOSEPH FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3530 OF 2008 ............................................ DATED THIS THE 13th DAY OF NOVEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.44 of 2003 on the file of Judicial First Class Magistrate-I, Chengannur. Petitioner was convicted for the offence under Section 138 of N.I.Act and sentenced to simple imprisonment for three months and a compensation of Rs.2,00,000/- and in default, simple imprisonment for two months. Petitioner challenged the conviction and sentence before Additional Sessions Court, Mavelikkara in Crl.A.26 of 2006. 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. Learned counsel appearing for revision petitioner was heard. The argument of learned counsel is that courts below did not properly appreciate the evidence and on the evidence, it should not have been found that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and the case of petitioner is that it was given as security, when Omana had borrowed the amount from revision petitioner and Omana had discharged the liability should have been accepted and therefore the conviction is not sustainable. It was also argued that in any case, the sentence awarded is excessive and even if CRRP 3530/2008 2 the conviction is to be confirmed, sentence may be modified and time may be granted to petitioner to pay the amount covered by the dishonoured cheque. 3. On hearing the learned counsel and going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though petitioner had a case that Ext.P1 cheque was issued as security for the loan availed of by Omana and that debt was discharged by Omana and the blank cheque was misused by revision petitioner, learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that evidence of DW1 cannot be relied on and evidence of PW1 is credible and reliable. I find no reason to interfere with the factual finding of learned Magistrate arrived at by reappreciation of evidence and confirmed by the Sessions Judge as appreciation of evidence cannot be said to be perverse. Even if the evidence is to be re-evaluated, the view taken by the courts below is the only possible and reasonable view that could be taken on the evidence. It is proved that Ext.P1 cheque was issued towards discharge of Rs.2,00,000/- which was borrowed earlier. Evidence also establish that cheque was dishonoured for want of sufficient funds. It is also proved that a notice as provided under Section 138(b) of N.I.Act was sent within the period and complaint was also lodged within the statutory period. CRRP 3530/2008 3 Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to sentence. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to him. Considering the nature of the offence, interest of justice will be met, if the sentence is modified to imprisonment till rising of court with adequate compensation to first respondent. 5. Revision petition is allowed in part. Conviction of petitioner under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.2,10,000/- and in default, simple imprisonment for two months. On realisation of fine, Rs.2,00,000/- to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 19.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-