IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 4642 of 2007() ------------------------------ CRA.26/2006 of I ADDL. SESSIONS COURT, PALAKKAD ST.525/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- P.S.NANDAKISHORE, S/O SIDHARTHAN, NANDADEEPAM, CALICUT BYEPASS ROAD, SEKHARIPURAM, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. R.K.SATHEESH KUMAR, S/O RAMAKRISHNAN, SATHIES VIHARA, MELEPPURAM, OLAVAKKODE, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SANTHEEP ANKARATH FOR R1 SRI.V.C.MADHAVANKUTTY FOR R1 BY PUBLIC PROSECUTOR SRI.CM. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4642 OF 2007 =========================== Dated this the 20th day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in S.T 525/2004 on the file of Judicial First Class Magistrate, Palakkad. First respondent lodged the complaint contending that petitioner borrowed Rs.1,75,000/- agreeing to repay the same with interest and when the amount was demanded, Ext.P1 cheque was issued for Rs.1,90,000/- from the account maintained by him in Lord Krishna Bank, Palakkad Branch and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2 memo and inspite of notice served on the petitioner demanding the amount, he did not pay the amount and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P3 were marked. CRRP 4642/2007 2 Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.1,90,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before the Sessions Court, Palakkad in Crl.A.26/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for six months and the compensation was confirmed. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Ext.P1 cheque was admittedly drawn in the account maintained by the petitioner in Lord Krishna Bank. Evidence of PW1 with ext.P2 establish that when the cheque was presented for encashment within the period, it was dishonoured for want of sufficient funds. Ext.P3 notice was sent which was served on the petitioner, demanding CRRP 4642/2007 3 the amount. Petitioner did not pay the amount. Though petitioner was not examined, his defence when questioned under section 313 of Code of Criminal Procedure was that he had issued two signed cheques to first respondent apart from a signed blank stamp paper and another blank paper to enable first respondent to raise funds. When first respondent was examined as PW1, he was cross examined based on this defence. PW1 denied that fact. Though PW1 was cross examined, nothing was brought out to disbelieve the evidence of PW1. Learned Magistrate and learned Sessions Judge appreciated the evidence and found that Ext.P1 cheque was issued towards repayment of the amount borrowed with interest. On the evidence, I do not find any reason to interfere with that finding. If Ext.P1 cheque was not issued towards repayment of the amount due, atleast when Ext.P3 notice was received, petitioner could have sent a reply stating the true facts. On appreciation of the entire evidence courts below rightly found that CRRP 4642/2007 4 Ext.P1 cheque was issued towards repayment of the amount due. In such circumstance, conviction of the 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. Ext.P1 cheque is for Rs.1,90,000/-. Learned Sessions Judge modified the sentence to simple imprisonment for six months apart from a compensation under section 357(3) of the Code of Criminal Procedure for the amount covered by the cheque. Interest of justice will be met if the sentence is reduced to imprisonment till rising of the court in addition to a fine of Rs.1,95,000/- and in default simple imprisonment for two months. On realisation of the fine amount, Rs.1,90,000/- is to be paid to first respondent as compensation. Petitioner is granted two months time to pay the fine amount. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence CRRP 4642/2007 5 is modified to imprisonment till rising of the court and a fine of Rs.1,95,000/- to be paid within two months from today and in default simple imprisonment for two months. On realisation of the fine, Rs.1,90,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the Judicial First Class Magistrate, Palakkad on 23.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006