IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3461 of 2008() ------------------------------ CRA.192/2007 of SESSIONS COURT, KASARAGOD CC.834/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.THAMBAN NAIR, AGED 53 YEARS, S/O.LATE ANIKKIL KUNHIRAMAN NAIR, 'SREERAGAM' PEROLE VILLGE, HOSDURG TALUK, NELESWAR.P.O. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. RAGHUNATHAN.K, AGED 39 YEARS, S/O.KRISHNA MOOTHA CHETTIAR, RESIDING AT WEAVERS' COLONY, THAIKADAPURAM, P.O.NEELESWAR, KASARAGOD TALUK. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3461 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in C.C.834 of 2003 on the file of Judicial First Class Magistrate, Hodgurg. Case of first respondent is that towards repayment of Rs.23,700/-, petitioner issued Ext.P1 cheque drawn in his account maintained in Nileshwar branch of Indian Overseas Bank dated 6.3.2003 and when the cheque was presented for encashment, under Ext.P2, it was dishonoured and Ext.P3 notice was sent demanding the amount covered by the cheque, which was received by petitioner and he did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P4 were marked on his side. Petitioner was not examined and no oral evidence was adduced on his side. Exts.D1 to D6 were marked. 2. Learned Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced him to simple imprisonment for two months, and a compensation of Rs.23,700/- and in default, simple imprisonment for one month under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and CRRP 3461/2008 2 sentence before Sessions Court, Kasargod in Crl.A.192 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and a compensation of Rs.23,700/- and in default, simple imprisonment for one month. The conviction and sentence is challenged in this revision petition filed under Section 397 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and on the evidence, it should have been found that Ext.P1 cheque was not issued towards discharge of any legally recoverable debt and therefore the conviction is not sustainable. Learned counsel also submitted that petitioner is prepared to pay the amount due to first respondent and was willing to compound the offence but first respondent was not prepared for the same and therefore he could not compound the offence. Learned counsel also submitted that petitioner is a government servant and therefore the sentence of imprisonment till rising of court may be modified to fine. 4. Though learned counsel vehemently argued that appreciation of evidence by courts below was not proper and therefore evidence is to be reappreciated, on hearing the learned CRRP 3461/2008 3 counsel and going through the judgments, I cannot agree with the submission that appreciation of evidence was perverse warranting reappreciation of evidence or substitution of the finding of this court to that of the courts below. Even if the evidence is to be reappreciated, the view taken by courts below is definitely a possible and reasonable view that could be taken on the evidence. Evidence establish that Ext.P1 cheque was issued towards payment of the amount due and it was dishonoured for want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and proper. 5. Then the only question is with regard to the sentence. So long as sentence is not to be modified or varied as against the interest of first respondent/complainant, it is not necessary to issue notice to him. Ext.P1 cheque is for Rs.23,700/-. Interest of justice will be met if the sentence is modified to a fine with compensation to first respondent. 6. Revision petition is allowed in part. Conviction of the petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitioner is sentenced to a fine of Rs.35,000/- and in default simple imprisonment for two months. On realisation CRRP 3461/2008 4 of fine, Rs.25,000/- shall be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted two months time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-