IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 3436 of 2008() ------------------------------ CRA.93/2007 of ADDITIONAL SESSIONS COURT, (ADHOC) I, MANJERI CC.62/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED --------------------------------------------------- P.K.DAMODARAN,S/O.APPUKUTTAN, PARAKKATTU HOUSE, HOUSE NO.2/229,NELLIYAMBALAM, NADAVAYAL.PO, PANAMARAM, WYANAD DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENT: RESPONDENT/COMPLAINANT ------------------------------------------------ 1. P.MUHAMMEDKUNHI MUSLIYAR, S/O.PUTHIYAKUNNAN MUHAMMED HAJI, NARIKATTUKUNNIL HOUSE, NARUKARA.P.O, PATTERKULAM, MANJERI. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3436 OF 2008 =========================== Dated this the 22nd day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in C.C.62/2005 on the file of Judicial First Class Magistrate II (Forest Offences), Manjeri. First respondent lodged the complaint contending that petitioner borrowed Rs.50,000/- and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Wynad District Co-operative Bank, Panamaram Branch and when the cheque was presented it was dishonoured for want of sufficient funds under Ext.P2 and Ext.P4 notice was sent demanding the amount. But petitioner failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P4 were marked. On the side of the petitioner no evidence was adduced. Learned CRRP 3436/2008 2 Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.50,000/- and in default simple imprisonment for two months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.93/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a compensation of Rs.50,000/- with a default sentence of simple imprisonment for three months. It is challenged in this revision. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for petitioner is that courts below did not properly appreciate the evidence and on the evidence it should have been found that petitioner had paid the entire amount due to first respondent. CRRP 3436/2008 3 It was argued that though assistance of a defence counsel was provided to the petitioner, because of difference of opinion he did not contest the case and therefore necessary evidence could not be adduced and hence the conviction and sentence is not sustainable. Learned counsel finally submitted that petitioner may be granted four months time to pay the amount as directed by the Sessions Court. 4. On going through the judgment of the courts below, I do not find any reason to interfere with the conviction. Evidence establish that Ext.P1 cheque was issued towards repayment of the amount borrowed. Though petitioner contended that the entire amount due to first respondent was paid and therefore no liability exists, no evidence was adduced to prove the alleged discharge. Even petitioner was not examined to prove the discharge. In such circumstance, courts below rightly rejected the claim of discharge. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds. Evidence also prove that CRRP 3436/2008 4 first respondent has complied with all statutory formalities provided under section 138 ad 142 of Negotiable Instruments Act. The conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court in addition to compensation with a default sentence. In view of the decision of the Apex Court that when compensation is awarded under section 357(3) of Code of Criminal Procedure, there cannot be a default sentence, sentence to that extent is illegal. But that defect could be cured by modifying the sentence to fine instead of compensation. The revision is partly allowed. The conviction for the offence under section 138 of N.I. Act is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.50,000/- to be paid within four months from today and in CRRP 3436/2008 5 default simple imprisonment for one month. On realisation of the fine it is to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the Magistrate on the expiry of four months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006