IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 Crl.Rev.Pet.No. 1637 of 2003() ------------------------------ CRA.513/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.4811/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- PUSHKARAN, S/O. KRISHNAN, KUNDAYI, NATTIKA, CHAVAKKAD. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS/RESPONDENTS/COMPLAINANT -------------------------------------- 1. SATHYAN, KRISHNAN, PANDARAMPARAMBIL, VALAPAD, CHAVAKKAD. 2. STAE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P. SRI. I.B.PRAMOD ADV. SRI.DILIP J. AKKARA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP NO.1637/2003 ORDER IN CRL.M.A. NO.7002/03 IN CRL.R.P. NO.1637/03 DISMISSED 20.5.2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE PA TO JUDGE /TRUE COPY/ M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No.1637 OF 2003 -------------------------- Dated this the 20th day of May, 2010 O R D E R The petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by the Judicial First Class Magistrate, Kodungallur in S.T. 4811 of 1997. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl. Appeal No.513 of 2000. The learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner and first respondent were heard. 3. The case of first respondent is that towards the payment of Rs.72,000/- due from the petitioner, he issued Ext.P1 cheque dated 26.9.1997, drawn in the account maintained by him in Nattika branch of Catholic Syrian Bank and when the cheque was presented for encashment, under Ext.P3 it was dishonoured for want of sufficient funds and Ext.P4 lawyer notice was sent demanding the amount covered by the dishonoured cheque and petitioner caused to sent Ext.P5 reply admitting the liability but expressing difficulty to pay the amount due to the circumstances Crl. R.P..No.1637/03 2 stated therein and petitioner by failure to pay the amount demanded committed the offence. Petitioner pleaded not guilty. The defence raised is that though Ext.P1 cheque was issued, it was not voluntarily executed but was obtained by the first respondent under threat and compulsion and therefore it is not valid and petitioner is not liable to pay the amount. 4. Learned Magistrate and the learned Sessions Judge properly appreciated the evidence and found that in Ext.P6 reply itself the petitioner has admitted the issuance of the cheque and the liability. It was also found that though it was contended that Ext.P1 cheque was vitiated by threat and compulsion and DW1 was examined to prove the same, he did not support the defence case and there is no corroborative evidence to support the interested version of DW1 and evidence of PW1 establishes that the cheque was issued towards repayment of the amount due. The argument of the learned counsel is that courts below did not properly appreciate the evidence and in any case the sentence awarded is excessive. 5. The fact that Ext.P1 cheque was issued in the account maintained by the petitioner and it was dishonoured for want of sufficient funds and Ext.P4 notice was received by him and Ext.P6 Crl. R.P..No.1637/03 3 reply admitting the issuance of the cheque and the liability was sent are all admitted. The defence is only that there was no liability to the first respondent and Ext.P1 cheque was obtained by exercise of threat and compulsion. 6. The question is whether there is any evidence in support of the defence case. DW1 was examined to prove the alleged threat and compulsion. He did not support the case of the petitioner. Learned Magistrate and the learned Sessions Judge properly appreciated the evidence of DW2, the petitioner and disbelieved his case. On going through the evidence, I find no reason to interfere with the factual findings of the courts below. The appreciation of evidence by the trial court and the appellate court cannot be said to be perverse warranting reappreciation of evidence. Even if evidence is appreciated, the conclusion or the finding cannot be different. In such circumstances, conviction of the petitioner for offence under Section 138 of Negotiable Instruments Act is perfectly legal and regular. 7. Then the question is regarding the sentence. Learned counsel appearing for the petitioner submitted that petitioner may not be sent to jail and first respondent may be adequately compensated. Crl. R.P..No.1637/03 4 Considering the entire facts and circumstances of the case, interest of justice will be met if sentence is modified to imprisonment till rising of court and a compensation of Rs.80,000/- and in default simple imprisonment for three months. Revision is partly allowed. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.80,000/- and in default simple imprisonment for three months. Petitioner is permitted to deposit it before the Magistrate or to pay the compensation directly to the first respondent and produce the receipt before the learned Magistrate and establish that compensation amount has been paid. Petitioner is directed to appear before the Magistrate on 15.6.2010. M.SASIDHARAN NAMBIAR (Judge) vps Crl. R.P..No.1637/03 5 Crl. R.P..No.1637/03 6