IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 Crl.Rev.Pet.No. 1385 of 2011() ------------------------------------------- CRA.979/2007 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK COURT-II, TRIVANDRUM ST.745/1999 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------------------------- SHAHUL HAMEED,S/O.ABDUL AZEEZ, THOTTUPURATHU VEEDU,NEAR S.M.S.GOVERNMENT SCHOOL AND FIRE FORCE STATION,KAYAMKULAM P.O,ALAPPUZHA DT. (CORREECT NAME AND ADDRESS AS FOLLOWS:KOCHUMON,S/O. ABDUL AZEEZ,AGED 45,THONDAPPURATH (H),NEAR M.S.M. H.S.,FIRE FORCE STATION,KAYAMKULAM P.O,ALAPPUZHA). BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): COMPLAINANT AND STATE -------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. L.MANIYAN CHETTIAR, RAJI BHAVAN, PALOOR LANE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN R2 BY ADV. SRI.PADMALAYAN.P.P. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.1385 of 2011 ----------------------------------------------- Dated this the 28th day of September, 2011 O R D E R Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”), concurrently by the two courts below. The learned trial magistrate, on his conviction, sentenced him to undergo simple imprisonment for three months and pay fine of Rs.45,000/- with default term of simple imprisonment for two months more. Out of the fine amount, if realised, a sum of Rs.40,000/- was directed to be paid as compensation to the complainant. The appeal preferred by the accused was turned down by the learned Sessions Judge, who confirmed the conviction and also the sentence without any Crl.R.P.No.1385 of 2011 :: 2 :: modification. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, 2nd respondent/ complainant has entered appearance through counsel. I heard the counsel on both sides. 3. Both the courts below have gone wrong in appreciating the materials on record, and, in fact, the defence projected by the accused to resist the prosecution was not examined properly with reference to the settled positions of law, is the submission of the learned counsel for the accused. The accused, denying the transaction with the complainant had contended that the cheque was issued to another and, further, he was not served with notice intimating the dishonour of the cheque. Notice was, in fact, served to another, who had been examined as DW.2. The evidence of the accused examined as DW.1, Crl.R.P.No.1385 of 2011 :: 3 :: supported by DW.2, and the documentary materials tendered proving that no statutory notice on dishonour of the cheque was served on the accused, was brushed aside by the learned magistrate and also by the learned Sessions Judge in appeal, according to the counsel. Comparison made over the signature appearing in Ext.P5 with those subscribed by PW.2 in his deposition statement, to discard the assertion of DW.2 that notice had been served on him, was highly improper, and the court should have examined and compared the signature appearing in acknowledgment card Ext.P5 with that appearing in Ext.P1, admittedly, subscribed by the accused, is the submission of the counsel. The finding formed by both the courts below as regards the service of notice on the accused, after comparison of the signature of DW.2 with that of Ext.P5 Crl.R.P.No.1385 of 2011 :: 4 :: acknowledgment card, at any rate, is perverse, is the further submission of the counsel, to contend that this court has to re-appreciate the evidence and form its own conclusion, to undo the injustice, in exercise of its supervisory jurisdiction. 4. On the other hand, the learned counsel appearing for the 2nd respondent/complainant would submit that the conclusion concurrently formed by both the courts below that the accused is guilty of the offence imputed, to found the conviction imposed against him, is fully supported by unimpeachable legal evidence, and it does not warrant any interference. 5. Perusing the judgments rendered by the learned magistrate and also the learned Sessions Judge, I am not persuaded by the submissions made by the learned counsel for the Crl.R.P.No.1385 of 2011 :: 5 :: accused that the conviction of the accused suffers from any infirmity, leave alone any illegality. True, the accused has contended that he did not receive the notice issued on dishonour of the cheque. It was his case that his name is Kochumon. But, in evidence, he conceded that his father has named him as “Shahul Hameed”. At the time when he was produced before the court in execution of a warrant he had moved an application for enlarging him on bail showing his name as “Shahul Hameed” is not disputed. In the witness schedule filed by him, he had stated his name as 'Kochumon @ Shahul Hameed'. Summons issued to him from a civil court had been accepted by him, as evidenced by Ext.D5, in the name of Shahul Hameed. When such be the proved facts and circumstances presented in the case, the finding formed by the learned magistrate to conclude that Crl.R.P.No.1385 of 2011 :: 6 :: the defence raised by the accused as to non- receipt of the statutory notice, which is further established by Ext.P5 acknowledgment card, no doubt, is a finding based on the materials on record and it is not liable to be disturbed in exercise of revisional jurisdiction of this court. Even if a different view is possible on the basis of the materials on record, the view formed by the inferior court is not liable to be disturbed, if such a view is also possible. The materials, prima facie, indicate that the plea raised by the accused setting forth a challenge that the notice was not served on him is wholly untenable. That cannot be canvassed as a ground to assail his conviction concurrently entered by the two courts below. The learned magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses examined in the case, found the Crl.R.P.No.1385 of 2011 :: 7 :: testimony of the complainant examined as PW.1 trustworthy and credible, and that of the accused examined as DW.1 unworthy of any merit. The learned Sessions Judge, re-appreciating the evidence, affirmed the conclusion so formed by the learned magistrate. When such be the case, and also when there is apparently no infirmity in the findings rendered by the courts to found the conviction of the accused, I find no merit in the revision. 6. As regards the sentence imposed against the accused, I find the substantive term of imprisonment directing his incarceration in prison for three months is not warranted, as the offence under Section 138 of the Act, of quasi civil in nature. Rather than the element of punitive, compensatory aspect has to be considered even where the drawer of the cheque is Crl.R.P.No.1385 of 2011 :: 8 :: found culpable on dishonour of that instrument. So much so, the substantive term of imprisonment imposed against the accused can be reduced to imprisonment for a day, till the rising of the court, retaining the fine amount with default term of imprisonment. 7. Affirming the conviction, sentence imposed against the accused is modified, reducing it to imprisonment for a day, till the rising of the court retaining the fine amount with default term of imprisonment. 8. Petitioner is directed to appear before the magistrate on 07.11.2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and, also to report the payment of the fine. The magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above for his Crl.R.P.No.1385 of 2011 :: 9 :: appearance. In default of his appearance and non- payment of the fine, the learned magistrate shall execute the sentence, taking appropriate steps, in accordance with law. Revision is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.