IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.REV.PET.NO. 3537 OF 2005() ------------------------------ CRA.158/2004 OF ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.440/1997 OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- PONNAPPA.C., S/O.C.M.CHEGANNA, CHEYANDA HOUSE, NMARAINDADA VILLAGE, P.O.CHEYANDANE, MEDIKERI TALUK, KARADA 571 212. BY ADV. SRI.T.B.SHAJIMON RESPONDENT(S) - RESPONDENTS - COMPLAINANT - STATE: ----------------------------------------------------------------------------- 1. M/S.MAHARASTRA APEX CORPORATION LTD., NAYAKS ROAD, KASARAGOD, REP. BY ITS POWER OF ATTORNEY HOLDER SRI.ANANDA PADMANABA BHAT, ACHAHADA CUDDAMANE, KATAPADY-574 105. 2. STATE OF K ERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU SRI.S.R.DAYANANDA PRABHU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 3537 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of May, 2009 O R D E R -------------- This revision arises from the judgment of learned Additional Sessions Judge (Ad Hoc-III) Kasargod in Crl. Appeal No.158 of 2004 in a proceeding under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Since counsel on both sides submitted that the revision petition could be disposed of without calling for the records in the light of the facts admitted and referred to in the judgments of the courts below I proceed to dispose of the revision petition accordingly. 2. Petitioner had a hire purchase agreement with respondent No.1 as per which the lorry referred to in the judgments under challenge was given on hire to the petitioner on his undertaking to pay the hire amount as per Ext.P2, hire purchase agreement. Respondent No.1 claimed that in violation of the agreement petitioner defaulted payment of the hire amount and towards part payment of the hire amount petitioner issued Ext.P3, cheque dated 29.7.1998 for Rs.1,20,000/-. That cheque was presented for encashment but dishonoured for insufficiency of funds. Though respondent No.1 issued notice intimating dishonour and demanding payment of the amount, petitioner did not pay the amount. Nor was there any reply. CRL. R.P. No.3537 of 2005 -: 2 :- Hence the complaint alleging offence under Sec.138 of the Act. Power of Attorney holder of respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P7. Case pleaded by the petitioner is one of discharge. He produced Exts.D1 and D2. Learned Magistrate found that the plea of discharge is not established and that at any rate the amount referred to in Exts.D1 and D2 is only towards part payment of the amount due and found the petitioner guilty. He was sentenced to undergo simple imprisonment for two weeks. He was also directed to pay compensation of Rs.25,000/- and in default of payment to undergo simple imprisonment for one week. Aggrieved, petitioner preferred Crl.Appeal No. 158 of 2004. Learned Additional Sessions Judge while confirming the conviction enhanced the sentence to simple imprisonment for one year and payment of fine of Rs.1,40,000/-. Hence the revision. 3. Learned counsel for petitioner contended that in view of Exts.D1 and D2, courts below should have accepted the plea of discharge raised by the petitioner. It is also contended that at any rate without respondent No.1 challenging the sentence in revision or other appropriate proceeding, learned Additional Sessions Judge was not legally justified in enhancing the sentence. Learned counsel for respondent No.1 contended that Exts.D1 and D2 are not sufficient to CRL. R.P. No.3537 of 2005 -: 3 :- prove the plea of discharge raised by the petitioner. 4. It is not disputed that petitioner executed Ext.P3, cheque in favour of respondent No.1. It is also not disputed, and proved by Ext.P2 that petitioner had entered into a hire purchase agreement with respondent No.1. It is towards part payment of the hire amount that petitioner issued Ext.P3. These facts are proved by the evidence of P.W.1. Respondent No.1 is therefore entitled to rely on the presumption under Sec.139 of the Act, as well. 5. On the question whether that presumption has been rebutted by the petitioner what is available is Exts.D1 and D2. In view of the dispute between the petitioner and respondent No.1 and in terms of the hire purchase agreement, arbitration proceeding was initiated but subsequent to Ext.P3. Exhibit D2 is the notice in such proceeding. Exhibit D1 is a receipt dated 4.4.2000. That receipt is issued by respondent No.1 in favour of a third party for the sum of Rs.85,000/- in connection with the release of the vehicle which was taken custody by the Forest Department. Learned Magistrate observed that at any rate that payment is only in partial discharge of the liability and did not affect the claim of respondent No.1 based on Ext.P3. It is not shown that Ext.D1 is in respect of the sum of Rs.1,20,000/- covered by Ext.P3. Courts below have considered these CRL. R.P. No.3537 of 2005 -: 4 :- aspects and found that the plea of discharge cannot be sustained. I find no irregularity, illegality or jurisdictional error in the courts below entering such a finding. As such conviction of the petitioner does not require interference. 6. So far as sentence is concerned, it is seen that even without any proceeding in challenge of the sentence awarded by the learned Magistrate to the petitioner at the instance of respondent No.1 learned Additional Sessions Judge enhanced the sentence. Counsel for respondent No.1 does not have a contention that the appellate court in the circumstances was justified in enhancing the sentence. Under Section 386(b)(iii) of the Code of Criminal Procedure, in an appeal from a conviction, the sentence cannot be enhanced. Therefore the sentence as enhanced by the appellate court cannot be sustained and is liable to be set aside. 7. Now coming to the sentence imposed by the learned Magistrate, simple imprisonment for two weeks has been awarded while directing payment of compensation of Rs.25,000/- which is not under challenge at the instane of respondent No.1. Considering the nature of the offence and the object of legislation, I am inclined to think that simple imprisonment till the rising of court will be sufficient in the ends of justice. There is however no reason to interfere with the CRL. R.P. No.3537 of 2005 -: 5 :- direction for payment of compensation issued by the learned Magistrate. Resultantly this revision petition is allowed in part in the following lines: (i) That part of the judgment of the appellate court enhancing the sentence and quantum of compensation is set aside. (ii) Substantive sentence awarded by the learned Magistrate is modified as simple imprisonment till the rising of court. (iii) Petitioner is granted one month's time from this day to deposit the compensation awarded by the learned Magistrate. (iv) Petitioner shall surrender in the trial court on 23.6.2009 to receive the sentence. (v) Bail bond shall stand cancelled. Criminal Miscellaneous Application No.23320 of 2005 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv