IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 Crl.Rev.Pet.No. 1174 of 2011() ------------------------------ CRA.103/2009 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.2163/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVISION PETITIONER(S) (APPELLANT/ACCUSED): ---------------------------------------------------------------------------- KUMARAN, S/O. PONNAN, KUNNAKADU VEEDU, AKATHETHARA.P.O, PALAKKAD - 678 001. BY ADVS. SRI.D.KRISHNA PRASAD, SMT.O.K.SANTHA. RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. PROF. N. SIVASANKARAN, AMRUTHA BHAVAN, MARANADU.P.O, EZHUKON VILLAGE, KOTTARAKKARA TALUK, PIN - 691 505. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 031. R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1174 OF 2011 -------------------------------- Dated this the 20th day of July 2011 ORDER The revision petitioner is the accused in S.T case No.2163/2006 on the file of the the Judicial First Class Magistrate Court -I, Palakkad. He was prosecuted for the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act) on a complaint filed by the 1st respondent. Negativing his plea of not guilty, the learned Magistrate convicted him for the offence and sentenced him to undergo simple imprisonment for a period of two years and to pay compensation of Rs.5,50,000/-, the cheque amount, to the complainant with default term of simple imprisonment for a period of four months. The learned Sessions Judge, before whom the revision petitioner challenged such conviction, turned down his appeal. Confirming the conviction, the Sessions Judge modified the sentence reducing the substantive term of imprisonment to three months, retaining the compensation fixed with the default term stipulated. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the accused assailed the conviction, concurrently, entered by the two inferior courts, Crl.R.P No.1174 OF 2011 2 contending that the defence canvassed by the accused that the cheque in blank form was issued in relation to a transaction with another, namely, one Murali, was not properly appreciated to examine whether due execution and consideration of the cheque, as alleged by the complainant, had been established in the case. Though the defence has not let in any evidence, in the light of denial of any transaction with the complainant, positive evidence, proving the execution and passing of consideration, was essential to found a conviction against the accused, according to the counsel. There is no legal evidence to draw such a conclusion on the available materials on record, is the further submission of the counsel. In the alternative, the sentence imposed against the accused is also attacked as not in consonance with the punishment to be imposed for dishonour of a cheque as covered under Section 138 of the NI Act. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find, the challenge against the conviction canvassed by the counsel for the accused is meritless. Complainant got himself examined as PW1 and he also examined another to prove the transaction under which the accused handed over the cheque. That witness examined as PW2 Crl.R.P No.1174 OF 2011 3 supported the case of the complainant. Complainant is shown to be a retired Professor. His evidence was found credible and trustworthy to the learned Magistrate. After reappraisal of his evidence, the Sessions Judge also took the same view. The evidence of the complainant was also corroborated by PW2, the witness examined by the complainant. Further more, the materials on record would indicate that the statutory notice issued, intimating dishonour of the cheque and demanding the sum covered thereunder, was acknowledged by the accused. But it was not responded to even by sending a reply. The complainant has also produced an agreement, Ext.P4, evidencing the transaction between him and the accused under which Ext.P1 cheque was handed over towards discharge of a liability. When such be the case, the conclusion formed by both the courts, concurrently, that the accused had duly executed Ext.P1 cheque towards discharge of a debt or liability in a transaction which he had with the complainant as alleged, is unassailable. So far as the sentence imposed against the accused, substantive term awarded by the Magistrate has been reduced and limited to three months by the learned Sessions Judge in appeal. True, the offence covered by Section 138 of the NI Act, as such does not warrant incarceration of Crl.R.P No.1174 OF 2011 4 the offender for a term unless exceptional circumstances present in the case to justify that he should suffer a term of imprisonment also as part of his sentence. Ext.P1 cheque reflects a substantial sum, Rs.5,50,000/-, is not a ground to hold that an exceptional circumstance has been made out to sentence the accused to suffer a term of imprisonment as part of the punishment. So much so, sentence imposed against the accused is modified and reduced to imprisonment for a day, till the rising of the court, retaining the compensation fixed with default term thereof. The accused shall pay the compensation within a period of one month from today. He shall appear before the learned Magistrate concerned on 26-08-2011 to serve out the sentence of imprisonment for the day, till rising of the court, and also to report payment of the compensation. In default of his appearance and nonpayment of compensation, the Magistrate shall take necessary steps to execute the sentence. Revision is disposed of as above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge