IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3307 of 2008() ------------------------------ CRA.86/2007 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.4/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER(S): --------------------- E.N.THULASIDAS, ELANJICKAL HOUSE, CHINA JN., MANGARAM, KONNY PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. PRIMARY CO.OP.AGRL.AND RURAL DEVELOPMENT BANK LTD.NO.Q.390) PATHANAMTHITTA, REP. BY ITS SECRETARY. PP SRI P RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3307 OF 2008 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act. First respondent is the complainant. Case of first respondent, Co-operative society is that petitioner borrowed Rs.2,00,000/- from the society and towards its discharge, issued Ext.P1 cheque dated 1.10.2005 for Rs.1,91,025/- drawn in his account and maintained in Konny branch of South Indian Bank Limited and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of notice served on the petitioner demanding the amount covered by the cheque, he did not pay the amount and thereby committed offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Learned Magistrate, on the evidence of the Secretary of first respondent as PW1 and Exts. P1 to P3, DW1 and Exts.D1 and D2, found the petitioner guilty and convicted and sentenced him to simple imprisonment for six months, and a compensation of Rs.2,00,000/- and in default, simple imprisonment for a period of three months under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.86 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and a fine of Rs.2,00,000/- and in default, simple imprisonment for six months. The conviction and sentence CRRP 3307/2008 2 is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. Learned counsel argued that courts below did not properly appreciate the case and failed to note that the cheque was not issued towards discharge of an existing liability and therefore the conviction is not sustainable. It was contended that learned Magistrate should have found that petitioner had only issued a blank cheque at the time when he availed of the loan and it was not issued towards repayment of the loan and therefore the conviction is bad. It was finally argued that petitioner may be granted four months' time to pay the fine amount considering his financial conditions. 4. On hearing the learned counsel and going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Evidence of PW1 establish that first respondent availed a loan of Rs.2,00,000/- and towards repayment of balance amount of Rs.1,91,025/- due, issued Ext.P1cheque. Evidence also establish that when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and 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 question is with regard to the sentence.Learned Sessions Judge modified the sentence to imprisonment till rising of court and a fine of Rs.2,00,000/- and in default, simple imprisonment for six months. I do not CRRP 3307/2008 3 find any reason to interfere with sentence also. But in view of the submission of learned counsel that because of financial conditions, he could not pay the fine and needs four months' time, petitioner is granted four months time from today to pay the fine and to appear before learned Magistrate as directed by learned Sessions Judge. 6. Revision petition is dismissed. Petitioner is granted four months time from today to pay the fine and to appear before the Magistrate as directed by learned Sessions Judge. Petitioner is directed to appear before learned Magistrate on the expiry of four months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-