IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 Crl.Rev.Pet.No. 3616 OF 2008() ------------------------------ CRA.458/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.621/2004 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- JIJI, S/O.RAJAPPAN, THADATHIL HOUSE, SOUTH KALLARA P.O., KALLARA KARA, KALLARA VILLAGE. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. THOMAS, S/O.CHANDY, MYLALIL HOUSE, SOUTH KALLARA, KALLARA KARA, KALLARA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3616 OF 2008 ------------------------------------------ Dated this the 12th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C. 621 of 2004 on the file of Judicial First Class Magistrate, Vaikom. First respondent lodged a complaint contending that petitioner borrowed Rs.50,000/- on 4.1.2004 and towards its repayment issued Ext.P1 cheque dated 5.3.2004 drawn in his account maintained in South Kallara Branch of State Bank of Travancore. First respondent presented the cheque for encashment. It was dishonoured under Ext.P2. Ext.P3 notice was sent demanding the amount covered by Ext.P1 cheque in the correct address of the revision petitioner. He did not receive the notice and Ext.P5 original notice was returned. Petitioner did not pay and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P5 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months in addition to a compensation. Petitioner challenged the CRRP3616/08 2 conviction before Sessions Court, Kottayam in Crl. Appeal 458 of 2006. 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.50,000/- and in default simple imprisonment for two months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel is that petitioner did not establish that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and in any case there was no notice and therefore the conviction is not sustainable. Learned counsel also argued that Ext.P1 was issued not to the petitioner but to one Joseph when Gopakumar purchased rubber from him and in such circumstances the conviction is not sustainable. 4. On hearing the learned counsel and on going through the judgment of the Courts below I do not find any reason to interfere with the conviction. Even though it was contended that Ext.P1 cheque was issued to one Joseph and that too in the transaction where Gopakumar purchased rubber, no evidence was adduced by the petitioner to substantiate the defence. CRRP3616/08 3 Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 in the proper perspective and found that it is credible and reliable and established that Ext.P1 cheque was issued towards discharge of a legally recoverable debt. Nothing was pointed out to interfere with that factual finding. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is proved that Ext.P5 notice was issued in the correct address of the revision petitioner and in spite of intimation it was not received by the petitioner. In such circumstances conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of Court and a fine and that too only for the amount covered by the dishonoured cheque. In such circumstances no interference is warranted in the sentence also. Revision is dismissed. Petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before Judicial First Class Magistrate, Vaikom on 13.2.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-