IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 2806 OF 2008() ------------------------------ CRA.329/2005 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.3062/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.CHANDRAN, S/O.CHERUKUTTY, CHORAKKADU THANISSERY, PERUVEMBA, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN SRI.M.A.RASHID SRI.MATHEW SUNNY RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------ 1. S.SANTHOSH, S/O.SIVARAMAN, SREE RAM NIVAS, LAL BAHADUR STREET, VADAKKANTHARA P.O., PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2806 OF 2008 ------------------------------------------ Dated this the 24th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 3062 of 2004 on the file of Judicial First Class Magistrate, Palakkad. Case of first respondent was that petitioner borrowed Rs.65,000/- and towards its repayment issued Ext.P1 cheque dated 22.6.2004 drawn in his account maintained in Koduvayur Service Co-operative Bank. Ext.P1 cheque when presented for encashment was dishonoured for want of sufficient funds under Ext.P2. In spite of Ext.P4 notice demanding the amount, petitioner did not pay and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of first respondent as PW1 and Exts.P1 to P6 found the petitioner guilty. He was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Palakkad in Crl. Appeal 329 of 2005. Learned Sessions Judge on reappreciation of evidence confirmed the CRRP2806/08 2 conviction but modified the sentence to imprisonment till rising of Court in addition to a compensation of Rs.75,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that petitioner did not issue Ext.P1 cheque towards repayment of Rs.65,000/- as claimed by first respondent and instead he issued a blank cheque when he borrowed Rs.1,000/- and therefore no offence under section 138 of Negotiable Instruments Act. 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the factual findings. Though PW1 was questioned, nothing was brought out to disbelieve his evidence. Learned Magistrate and learned Sessions Judge on appreciation of evidence found the evidence of PW1 credible and reliable. Though petitioner raised a contention that Ext.P1 cheque was issued as a blank cheque and in Ext.P6 reply notice such a contention was raised, no evidence was adduced to establish that Ext.P1 cheque was issued as a blank cheque. Even while cross-examining PW1, the defence case was not even probablized. On the evidence Courts below rightly found that Ext.P1 cheque was issued towards CRRP2806/08 3 discharge of Rs.65,000/- borrowed by petitioner earlier. It is also proved that the cheque was dishonoured for want of sufficient funds and first respondent has complied with all statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. Though learned Magistrate awarded substantive sentence of simple imprisonment for three months, learned Sessions Judge modified it to imprisonment till rising of Court in addition to a compensation of Rs.75,000/-, which was only Rs.10,000/- in excess of amount covered by the dishonoured cheque. Cheque was issued in 2004. In such circumstances I find no reason to interfere with the sentence also. Learned counsel then submitted that petitioner may be granted six months time to pay the fine. Revision is dismissed. Petitioner is granted four months time to pay the fine from today. Petitioner is directed to appear before the Magistrate on 27.3.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-