IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 3763 of 2008() ------------------------------ CRA.195/2005 of ADDL. SESSIONS COURT FAST TRACK COURT NO.III PALAKKAD ST.1371/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------- SHEEBA UNNIKRISHNAN,W/O.UNNIKRISHNAN C/O.UDAYAKUMAR, FLAT NO.25,28 AVENUE BANU NAGAR, AMBATHUR, CHENNAI 53. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. M.MADHUSOODHANAN, PROPRIETOR, BHARAT REFRIGERATOR, 18/385 ENGLISH,CHURCH ROAD, NEAR HOTEL INDRAPRASTHA, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3763 OF 2008 =========================== Dated this the 21st day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.1371/2004 on the file of Judicial First Class Magistrate, Palakkad. Petitioner was convicted and sentenced to simple imprisonment for one month and a compensation of Rs.75,000/- by the learned Magistrate. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.195/2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to a fine of Rs.80,000/- with a direction to pay the fine, on realisation, to the first respondent as compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that CRRP 3763/2008 2 the courts below did not properly appreciate the evidence. It was argued that from the evidence of PW1 and DW1 courts below should have found that first respondent was a surety to DW1 the husband of the revision petitioner, when he received the amount under the Chitty transaction and on the failure of DW1 to pay that amount, first respondent paid that amount and the cheque which was handed over by the revision petitioner to the Chitty Company as security was obtained by first respondent and made use of to lodge the complaint. It was argued that Ext.D2 receipt establishes that liability of DW1 to the first respondent was discharged and therefore Ext.P1 cheque was not issued towards discharge of any legally recoverable debt and hence the conviction is not sustainable. Learned counsel finally submitted that in case conviction is to be confirmed, petitioner may be granted time for payment of the amount. 4. On hearing the learned counsel and going through the judgments of the courts below, I find CRRP 3763/2008 3 no reason to interfere with the factual findings arrived at by the courts below based on the evidence on record. Learned counsel read over the evidence recorded by the learned Magistrate. On going through the depositions it cannot be said that the view of the courts below is not a reasonable or possible view that could be taken on the evidence. Evidence of PW1 establishes that Ext.P1 cheque was issued towards repayment of the amount borrowed. What was contended by the revision petitioner was that Ext.P1 cheque was issued to the Chitty Company in a chitty transaction when husband of the revision petitioner bid chitty and first respondent was one of the sureties and on the failure of the husband of the revision petitioner to pay that amount, Chitty Company realised that amount from the first respondent and first respondent procured the cheque which was issued to the Chitty Company as security and based on that cheque the complaint was lodged. It was also contended that the amount CRRP 3763/2008 4 due to the first respondent from DW1 was subsequently paid as evidenced by Ext.D2 receipt. Ext.D2 receipt was not even shown to the first respondent when examined as PW1. True, PW1 was asked whether he was a surety and whether he paid that amount and whether that amount was subsequently repaid by DW1. But PW1 has denied these facts. Inspite of that the revision petitioner did not confront Ext.D2 receipt to PW1 and asked whether it is not a receipt issued by him. Courts below were fully justified in not relying on Ext.D2 which was not proved to be a receipt issued by first respondent and which was not even shown to PW1 at the time of evidence. Therefore on appreciating the entire evidence, the view taken by the courts below is the only reasonable and possible view that could be taken. It is proved that Ext.P1 cheque was issued towards discharge of an existing liability. It is also proved that the cheque was dishonoured for want of sufficient funds and first respondent has complied CRRP 3763/2008 5 with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to only fine and that too only Rs.5000/- in excess of the amount covered by the dishonoured cheque. In such circumstance, I find no reason to interfere with the sentence also. Revision is dismissed. Revision petitioner is granted three months time from today to pay the fine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006