IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 3806 of 2008(E) ------------------------------- CRA.771/2003 of SESSIONS COURT, KOZHIKOE ST.334/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPE4LLANT/ACCUSED --------------------------------------- ABDUL AZEEZ, VELIKKODAN ENTERPRISES, A/1204,VELLAYIL ROAD, KOZHIKODE-677022. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. M.S.NISHAD, S/O.AZAD, MANAGING PARTNER, M/S.AZAD CHEMICALS AND AGENCIES, 20/1100 CHERUMANASSERY ROAD, KALLAI, KOZHIKODE-3. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI AMJAD ALI SRI.K.M.FIROZ FOR R1 SMT.M.SHAJNA FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3806 OF 2008 ............................................ DATED THIS THE 12th DAY OF DECEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant in S.T. 334 of 2000 on the file of Judicial First Class Magistrate, Kozhikode. Revision petitioner was convicted for the offence under Section 138 of N.I.Act. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.A.771 of 2003. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court, and a compensation for the amount covered by the dishonoured cheque. Revision petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel argued that courts below did not properly appreciate the evidence and should have accepted the case of revision petitioner that he had borrowed Rs.5000/- from Abdul Jabbar and towards its security, a cheque was issued, which was not returned though the amount was repaid and that cheque was misused by the first respondent and therefore Ext.P1 cheque was not issued towards discharge of a legally recoverable debt. It was also contended that courts below should have found that the firm of revision petitioner is CRRP 3806/2008 2 Valiyakodan and the drawer under Ext.P1 cheque is Valiyakodan Enterprises and therefore courts below were not justified in convicting petitioner. 3. On hearing the learned counsel and going through the judgments of courts below, I find no reason to interfere with the conviction or sentence. Learned Magistrate analysed the evidence and on proper appreciation of evidence, found that Ext.P1 cheque was issued towards discharge of a legally recoverable debt. Though revision petitioner contended that it was given as a blank cheque to one Abdul Jabbar, from whom revision petitioner had borrowed the amount, courts below on proper appreciation of evidence, disbelieved that case. Nothing was pointed out to interfere with the finding of fact on these aspects. Courts below properly considered the difference in the name of the drawer and revision petitioner and found that revision petitioner is the drawer of the cheque. I find no reason to interfere with that finding also. Appreciation of evidence by courts below cannot be said to be perverse. I find no reason to interfere with any of the factual findings. Evidence establish that Ext.P1 cheque was issued by revision petitioner towards discharge of existing liability and it was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Conviction of revision CRRP 3806/2008 3 petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court in addition to a compensation, that too, only for the amount covered by the dishonoured cheque In such circumstances, I find no reason to interfere with sentence also. 5. Revision petition is dismissed. Petitioner is directed to appear before the Magistrate on 13.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-