IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2911 of 2008() ------------------------------ CRA.77/2005 of ADDL. SESSIONS COURT FAST TRACK COURT -I, (ADHOC), TRIVANDRUM CC.254/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- SALEEM, S/O.ABDUL JABBAR, TC.49/ 638(1), VELIYAPALLI ROAD, MRWA-40, KALIPPANKULAM, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT(S):RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------- 1. ANIL, S/O.DHARMARAJAN, THENGUVILA HOUSE, PRALAYAGIRI, S.V.PURAM, CHEMMARUTHI VILLAGE, VARKALA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2911 OF 2008 =========================== Dated this the 4th day of December,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.254/2003 on the file of Judicial First Class Magistrate, Varkala. Petitioner was convicted and sentenced to simple imprisonment for four months and a compensation of Rs.2 lakhs for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.77/2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. 3. The argument of the learned counsel is that courts below did not properly appreciate the CRRP2911/2008 2 evidence and on the evidence it should have been found that revision petitioner was having monetary transaction with Vijayan, the brother of first respondent who is in Abu Dhabi and for that transaction he had issued cheques to Vijayan and though cheques issued from the account of the revision petitioner at Abu Dhabi were returned the cheque issued in his account in Kerala was not returned and the cheque was misused by first respondent and complaint is lodged and therefore revision petitioner did not commit any offence. Learned counsel argued that evidence of PW1 should not have been accepted by the courts below and evidence of DW1 should have been accepted. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. Though revision petitioner had raised a contention that Ext.P1 cheque was issued to the brother of CRRP2911/2008 3 first respondent, in respect of a loan which was subsequently repaid, learned Magistrate on proper appreciation of evidence disbelieved the evidence of DW1 and accepted the case PW1. Learned Sessions Judge reappreciated the evidence and confirmed the findings. Nothing was pointed out to interfere with that factual findings. Evidence on record establish that Ext.P1 cheque was issued towards repayment of the amount legally due. It is also proved that the cheque was dishonoured for want of sufficient funds and inspite of notice demanding the amount, revision petitioner did not pay the same. First respondent had complied with all the statutory formalities provided under section 138 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 and 142 of N.I. Act is perfectly legal. 5.Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.2 lakhs and was issued on 1.9.2002. Learned Magistrate sentenced petitioner to undergo simple imprisonment for four CRRP2911/2008 4 months in addition to a compensation for the amount covered by the dishonoured cheque. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice on the first respondent. 6. Considering the facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a fine of Rs.2,10,000/- and in default simple imprisonment for three months. Revision is allowed in part. Conviction of petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs.2,10,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.2,00,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision petitioner is directed to appear before the Judicial First Class CRRP2911/2008 5 Magistrate, Varkala on 30.1.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006