IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.Rev.Pet.No. 3581 of 2008() ------------------------------ CRA.1017/2005 of SESSIONS COURT, THRISSUR CC.125/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------- SHRI.MOHANAN T.V. PEON, IN SREE VIVEKANANDA COLLEGE, KUNNAMKULAM NOW WORKING AS PEON IN SREE KERALA VARMA COLLEGE THRISSUR, THRISSUR DISTRICT. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. SHRI.UDAYABHANU S/O.K.K.CHANDRAN KALLAMPARA HOUSE PANANGATTUKARA P.O VADAKKANCHERY, THRISSUR DIST. 2. STATE OF KERALA REPRESENTED 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 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3581 OF 2008 =========================== Dated this the 11th day of November,2008 ORDER Petitioner is the accused and first respondent the complainant in C.C.125/2001 on the file of Judicial First Class Magistrate, Kunnakulam. First respondent lodged the complaint contending that revision petitioner borrowed Rs.30,000/- and towards its repayment when demanded issued Ext.P1 cheque dated 4.12.2000 drawn in his account maintained in Kunnamkulam Branch of Dhanalakshmi Bank and when the cheque was presented for encashment it was dishonoured under Ext.P2 for want of sufficient funds and inspite of Ext.P4 notice served on the petitioner under Ext.P6 acknowledgement card it was not paid and petitioner thereby committed the offence under section 138 of Negotiable Instruments Act. The brother of the first respondent who is the power of attorney holder under Ext.P7 was examined as PW1 as first CRRP 3581/2008 2 respondent was not in India. Petitioner was examined as DW2 and a witness was examined as DW1, Exts.P1 to P7 were marked on the side of first respondent. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.30,000/- and in default simple imprisonment for one month. Petitioner challenged the conviction and sentence before the Sessions Court,Thrissur in Crl.A.1017/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months confirming the compensation. It is challenged in the revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that though PW1 was examined, he is only a power of attorney holder and in his proof affidavit there is no case that he has personal knowledge about the CRRP 3581/2008 3 transaction and therefore evidence of PW1 should not have been accepted by the courts below and based on that evidence petitioner should not have been convicted. Learned counsel also argued that evidence of PW1 shows that the signature and handwriting in Ext.P1 are in different inks and therefore it should have been found that Ext.P1 cheque was not issued towards the repayment of the amount borrowed and instead was issued as a blank cheque to Star Finance as deposed by DW1 towards the loan availed by the revision petitioner and it was misused by first respondent and hence the conviction is not sustainable. Learned counsel finally submitted that petitioner may be granted some time for payment and the sentence may be modified. 4. Though PW1 the brother of first respondent who is also the power of attorney holder of first respondent under Ext.P7, did not specifically state in the proof affidavit that he was present at the time of the transaction, in cross examination, it CRRP 3581/2008 4 is brought out that PW1 was present when the amount was borrowed by the petitioner from his brother and also when the cheque was issued. Though PW1 was cross examined, the details of the original borrowed spoken to by PW1 was not effectively cross examined. On going through the evidence, findings of the courts below that evidence of Pw1 establish that cheque was issued towards repayment of the amount borrowed is definitely a possible and reasonable view that could be taken. The argument of the learned counsel is that evidence of DW1 corroborates the evidence of DW2 and believing DW1 it should have been found that Ext.P1 cheque was issued as a blank cheque to Star Finance and not to first respondent. Eventhough Ext.P4 notice demanding the amount covered by Ext.P1 cheque was received by petitioner and petitioner was aware that first respondent is claiming Rs.30,000/- covered by Ext.P1, on the basis that it was a cheque issued by the petitioner towards repayment of the amount due from him, petitioner did not send CRRP 3581/2008 5 any reply. If in fact Ext.P1 cheque was issued to Star Finance as a blank cheque and Ext.P4 notice was received by the petitioner, it is not the conduct of an ordinary prudent man. When PW1 was examined what was suggested to PW1 was that Ext.P1 cheque was issued to one Satheesh, son of Raghavan and that too for the loan availed from Star Finance. There is no suggestion that Ext.P1 cheque was issued as a blank cheque to DW1 Jaysing, when Rs.10,000/- was borrowed as deposed by DW1. Though DW1 deposed that Ext.P1 cheque was handed over to him as a blank cheque, courts below rightly did not accept the evidence because evidence does not inspire any confidence. Courts below appreciated the evidence in the proper perspective and found that case of the petitioner that Ext.P1 cheque was issued as blank cheque and that too to star Finance is not correct and instead it was issued to first respondent towards repayment of the amount due. Evidence also establish that the cheque was dishonoured for want of sufficient funds and first CRRP 3581/2008 6 respondent complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act.Conviction of the petitioner is perfectly legal. 5. Then the only question is whether the sentence awarded. So long as the sentence is not modified or varied against the interest of first respondent, it is not necessary to issue notice to first respondent. Ext.P1 cheque is only for Rs.30,000/-. Petitioner is admittedly working as a Peon in a College. Learned Sessions Judge modified the sentence to simple imprisonment for three months. Interest of justice will be met, if the sentence is modified to imprisonment till rising of the court and a direction to pay the fine on realisation to first respondent as compensation. Revision petition is allowed in part. Conviction of the 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 CRRP 3581/2008 7 and a fine of Rs.32,000/- and in default simple imprisonment for one month. On realisation of the fine, Rs.30,000/- to be paid to first 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 the Magistrate on 25.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006