IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.Rev.Pet.No. 3462 of 2008() ------------------------------ CRA.55/2006 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD STC.4379/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SUSEELAN, S/O.KOCHUKUTTAN, 4/51, B.N.KOZHINJAMPARA, CHITTOOR, PALAKKAD DISTRICT. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. MANOHARAN, S/O.MADHAVAN MANNADIAR,5TH MILE, KUTTIPPALLAM, CHITTUR TALUK, MANAGING DIRECTOR, SRE BHAGAVADESWARI CHITS PVT.LTD, GOPALAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3462 OF 2008 ............................................ DATED THIS THE 24th DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in S.T.4379 of 2004 on the file of Judicial First Class Magistrate, Chittoor. First respondent is the complainant. Complaint was lodged contending that petitioner joined a kuri and received the amount prizing the chitty and after paying part of the amount, defaulted to pay the balance and towards its payment of the balance amount, Ext.P1 cheque was issued drawn in his account maintained in Kozhinjampara branch of South Indian Bank for Rs.45,000/- on 10.5.2005. When presented the cheque, it was dishonoured for want of sufficient funds. First respondent sent Ext.P4 notice demanding the amount covered under Ext.P1. It was received by the petitioner under Ext.P5. But he did not pay and thereby committed the offence. Learned Magistrate took cognizance of the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P9 were marked. 2. Learned Magistrate, on the evidence, found the petitioner guilty. He was sentenced to simple imprisonment for three months and a compensation of Rs.50,000/- and in default, CRRP 3462/2008 2 simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.55 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that courts below was not justified in convicting the petitioner, when first respondent did not establish that Ext.P1 cheque was issued towards discharge of a legally recoverable debt. It was also argued that in any case, sentence awarded is excessive and because of the financial conditions of petitioner, he may be granted time to pay the fine. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 in the proper perspective. Though petitioner disputed the transaction, evidence of PW1 establish that petitioner had joined the kuri conducted by first respondent and had bid the kuri and received the amount as evidenced by Ext.P7 and towards the balance payable, issued Ext.P1 cheque. Evidence also establish that when the cheque was presented for encashment, it was dishonoured for want of CRRP 3462/2008 3 sufficient funds. Though learned counsel argued that evidence was not properly appreciated, on going through the judgments of courts below, I cannot agree with the submission. Findings of learned Magistrate was confirmed by learned Sessions Judge on reappreciation of evidence. No material was pointed out, which was omitted to be taken note of by courts below warranting a different conclusion. Therefore on the evidence, conviction of petitioner for the offence under Section 138 of N.I.Act is legal and correct. 5. Then the question is with regard to the sentence. Evidence establish that Ext.P1 cheque for Rs.45,000/- was issued towards a chitty transaction. So long as the sentence is not to be varied or modified against the interest of the first respondent, it is not necessary to issue notice to first respondent. In the circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and a fine of Rs.50,000/- and in default simple imprisonment for two months. On realisation of fine, it is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 6. Revision petition is allowed in part. Conviction of CRRP 3462/2008 4 petitioner under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.50,000/- and in default, simple imprisonment for two months. On realisation of the fine, it is to be paid to second respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted three months time to pay the fine. Petitioner is directed to appear before learned Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-