IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 79 of 2009() ---------------------------- CRA.507/2008 of ADDL. SESSIONS COURT, VADAKARA S.T.235/06 OF Judicial First Class Magistrate-II, VADAKARA .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------- M.J.DEVAKI, 60 YEARS W/O. C.N.RAJA VAISAKH HOUSE,KARIMABA PO PALAKKAD DISTRICT. BY ADV. SRI.A.F.SEBASTIAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. RAFEEQUE P.V.P.,S/O.ALIKOYA PANDIKASALAVALAPIL PUTHIYAPURAYIL HOUSE VADKARA BEACH, KOZHIKODE DISTRICT,REP. BY POWER OF ATTORNEY HOLDER C.K. IBRAHIM S/O.HASSAN, 44 YEARS, ELINKORENTAVIDA REYARANGOTH PO, KOZHIKODE DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.79 OF 2009 ------------------------------------------ Dated 9th January 2009 O R D E R Revision petitioner is the accused and second respondent, the complainant in S.T.235/2006 on the file of Judicial First Class Magistrate-II, Vadakara. Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before Additional Sessions court, Vadakara in Crl.A.507/2008. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for six months in addition to compensation of Rs.6,00,000/- and in default simple imprisonment for six months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel relying on the decision of Apex court in Krishna Janardhana Bhat vs. Dattatraya CRRP 79/09 2 G. Hegde (2008 AIR (SCW)738) argued that neither learned Magistrate nor learned Sessions Judge has applied the law as laid down by the Apex court. It was argued that it is for the complainant to establish that the dishonoured cheque was issued by revision petitioner towards discharge of a legally recoverable debt or liability and there is no evidence to establish that fact and therefore the conviction is not sustainable. Argument of learned counsel is that presumption under Section 139 of Negotiable Instruments Act should not have been drawn by the courts below in the light of the law laid down by the Apex court in Krishna Janardhanan Bhat's case and when Rs.6,00,000/- was allegedly advanced without getting any receipt and the alleged payment was in violation of the provisions of Income Tax Act, courts below should not have found that Ext.P1 cheque was issued towards discharge of existing liability and therefore the conviction is to be set aside. 3. On hearing the learned counsel and going through the judgments of the courts below and evidence of PW1 made available by the learned counsel I find no reason to interfere with the conviction. Though the CRRP 79/09 3 decision in Krishna Janardhanan Bhat's case (supra) was pressed into service, on the facts of this case I find no application of the principles laid down therein on the facts of the case. It is the case of second respondent that revision petitioner and second respondent are friends and revision petitioner represented that second respondent could be made a partner in the A.C.Mechanic business being conducted by the husband of revision petitioner at Australia, so that half of the profit could be shared by second respondent and as agreed second respondent paid Rs.6,00,000/- for that purpose to the revision petitioner. It is the further case that second respondent was not made a partner in the business and on enquiry it was found out that husband of revision petitioner is not having such a business and at that stage, revision petitioner agreed to re-pay that amount and as agreed Ext.P1 cheque for Rs.6,00,000/- was issued. This was spoken to by second respondent as PW1. Even though PW1 was cross examined, they were friends and fact that revision petitioner had promised to make second respondent a partner of the business being conducted by her husband at Australia on payment of CRRP 79/09 4 Rs.6,00,000/- and second respondent paid Rs.6,00,000/- to the revision petitioner and that subsequently revision petitioner agreed to repay the same were not challenged in cross examination. Revision petitioner also did not adduce any evidence. Therefore, as per the evidence on record, the unchallenged evidence of PW1 on those facts establish that revision petitioner received Rs.6,00,000/- from second respondent agreeing to make revision petitioner a partner of the business being conducted by her husband and subsequently agreed to repay the same. Evidence also establish that Ext.P1 cheque was issued towards repayment of that amount. On the facts, argument of learned counsel appearing for revision petitioner that Ext.P1 cheque was not issued towards discharge of an existing debt or liability cannot be accepted. Evidence establish that Ext.P1 cheque was issued by the revision petitioner towards repayment of Rs.6,00,000/- received by her from second respondent earlier. Hence courts below on the evidence rightly found that Ext.P1 cheque was issued towards discharge of existing liability. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds and second respondent had complied with all the CRRP 79/09 5 statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 4. Then the only question is regarding the sentence. Learned Additional Sessions Judge modified the sentence to simple imprisonment for six months in addition to compensation of Rs.6,00,000/- in modification of the sentence of simple imprisonment for nine months and compensation of Rs.6,00,000/- awarded by the Magistrate. So long as the sentence is not varied or altered against the interest of second respondent, it is not necessary to issue notice to second respondent. As per the modified sentence, second respondent is to get a compensation of Rs.6,00,000/-. Ext.P1 cheque is also for Rs.6,00,000/-. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine of Rs.6,00,000/- and in default simple imprisonment for six months with a direction to pay the fine on realisation to second respondent as compensation under Section 357(1)(b) of CRRP 79/09 6 Criminal Procedure Code. 5. Revision is allowed in part. Conviction of the revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.6,00,000/- and in default simple imprisonment for six months. On realisation of fine, it is to be paid to second respondent as compensation under Section 357(1) (b) of Criminal Procedure Code. Revision petitioner is granted one months' time to pay fine. She is directed to appear before Judicial First Class Magistrate-II, Varkala on 11/2/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.