IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 7 of 2003 ---------------------------------------- CRA.363/2001 of SESSIONS COURT, THRISSUR CC.1150/1998 of JFCM, CHAVAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: P.S.PRAKASAN, S/O. SANKURU, PATHIALA HOUSE, CHEMMANNUR P.O., KUNNAMKULAM. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.K.SANKARANARAYANAN, MANJIPARAMBIL HOUSE, ARTHAT P.O., TALAPPILLY TALUK. BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD FOR R1 ADV. SRI.T.H.ABDUL AZEEZ FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.30/2003 IN CRRP 7/2003 DISMISSED 17.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.7 of 2003 -------------------------- ORDER Petitioner was the accused in C.C.No.1150/1998 on the file of Judicial First Class Magistrate's Court, Chavakkad. He was convicted and sentenced to imprisonment till rising of court and a fine of Rs.5,000/-. Second respondent/complainant challenged the inadequacy of the sentence before Sessions Court, Thrissur in Crl.R.P.No.66/2001 and petitioner challenged the conviction and sentence in Crl.A.No.363/2001. Learned Sessions Judge, as per common judgment dated 7.10.2002, dismissed the appeal and allowed the revision and modified the sentence to imprisonment till rising of court and a compensation of Rs.23,000/- with a default sentence of simple imprisonment for three months. This revision is filed challenging the conviction and the modified sentence. 2. Learned counsel appearing for the petitioner was heard. CRRP 7/03 2 3. Learned counsel appearing for the petitioner argued that courts below failed to take note of the fact that it is for the second respondent to establish that the dishonoured cheque was issued in discharge of an existing legal liability and on the evidence, it should have been found that the dishonoured cheque was not issued towards discharge of any legal liability and therefore, the very conviction is not sustainable. Petitioner would also contend that in any case, when the learned Magistrate awarded a proper sentence, learned Sessions Judge should not have interfered with the sentence and the default sentence for non payment of the compensation is illegal. 4. Exhibit P1, the dishonoured cheque, was admittedly drawn in the account maintained by the petitioner. When second respondent presented the cheque for encashment, evidenced by Exhibit P2, it was dishonoured for want of sufficient funds. Exhibit P7, the certified extract of the ledger account of the petitioner, establishes that the CRRP 7/03 3 account was closed and when it was closed, there was no sufficient amount to honour Exhibit P1 cheque. Exhibit P4, the notice, issued by second respondent to the petitioner demanding the amount covered by the dishonoured cheque, was returned under Exhibit P6. Learned Magistrate, on appreciation of the evidence of PW1, found that Exhibit P1 cheque was issued by the petitioner towards discharge of the amount due to the second respondent. Learned Sessions Judge, in appeal, re- appreciated the evidence and found that though petitioner contended that the cheque was issued not to the second respondent, but to another financier, no evidence was adduced to prove the same. I find no illegality or irregularity in appreciation of evidence. In any case, appreciation of evidence cannot be said to be perverse, warranting re- appreciation of the evidence at the revisional stage. The evidence establishes that Exhibit P1 cheque was issued by the petitioner to the second respondent towards repayment of the amount due and CRRP 7/03 4 when the cheque was presented for encashment within the statutory period, it was dishonoured, as the account was closed and there was no sufficient amount in that account. Evidence also establishes that second respondent had sent a notice in the correct address of the petitioner demanding the amount covered by the dishonoured cheque within the statutory period and a complaint was also filed within the period. In such circumstances, there is no illegality in the conviction for the offence under Section 138 of Negotiable Instruments Act. 5. Then the only question is with regard to the sentence. The cheque was for Rs.20,000/-. Learned Magistrate awarded only a nominal sentence and a fine of Rs.5,000/-. Second respondent challenged the inadequacy of the sentence by filing a revision contending that the sentence was disproportionate to the offence and warrants interference. Learned Sessions Judge modified the sentence to imprisonment till rising of court and a compensation of Rs.23,000/-. I find no reason CRRP 7/03 5 warranting interference with the sentence. Similarly, learned Sessions Judge had awarded a default sentence of three months. It is also legal. Hence, there is no merit in the revision. 6. Learned counsel then submitted that petitioner may be granted time to pay the compensation pointing out that when the revision was admitted and the sentence was suspended, petitioner was directed to deposit Rs.5,000/- before the trial court and petitioner has already deposited the same. This revision was filed in 2003. Petitioner got more than sufficient time. In such circumstances, I find no reason to grant further time. Revision is dismissed. Learned Magistrate is directed to execute the sentence, if the petitioner does not appear to undergo the substantive sentence and pay the compensation within two weeks from today. 17th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 7/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.7 of 2003 -------------------------- ORDER 17th May, 2010