IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 246 of 2004() ----------------------------- CR A.70/2002 of SESSIONS COURT, MANJERI ST.4719/2000 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- P.A.SAINUDHEEN C/O.BAVA HAJI, BAVA MANZIL, CHUNGAM PUNNATHALA VALANCHERI, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE. ------------------------------------------------- 1. P.LOKANATHAN, SRAVANTHI, PUTHUR P.O. KOTTAKKAL VIA, MALAPPURAM DISTRICT. 2. STATE OF KERALA REP. BY THE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.246 OF 2004 --------------------------------------------- Dated 2nd August, 2010 O R D E R Revision petitioner, the accused in S.T.4719/2000 on the file of Judicial First Class Magistrate, Malappuram was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions court, Manjeri in Crl.A.70/2002. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and modified the sentence to simple imprisonment for one month. Revision is filed challenging the conviction and sentence. First respondent is the complainant. Though notice was served on CRRP 246/04 2 first respondent, he did not appear. 2. Learned counsel appearing for the petitioner was heard. 3. Ext.P1 cheque for Rs.60,000/- dated 4/10/1999 was admittedly drawn in the account of the petitioner maintained in Muthalamada branch of Federal Bank. When presented through Kottakkal branch of South Malabar Gamin Bank, where first respondent has an account, the cheque was dishonoured for want of sufficient funds under Ext.P2 dishonour memo. First respondent sent original of Ext.P3 notice demanding the amount covered by Ext.P1 cheque. It was received by the petitioner under Ext.P5. He did not sent any reply. Complaint was filed thereafter alleging that petitioner committed the offence under Section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded CRRP 246/04 3 not guilty. First respondent was examined as PW1. Exts.P1 to P6 were marked. Petitioner did not adduce any evidence. When questioned under Section 313 of Code of Criminal Procedure, he only contended that he had no transaction with the first respondent and first respondent is a lender and he had given Ext.P1 cheque as security to his friend. Learned Magistrate on appreciation of evidence relying on the evidence of PW1 found that Ext.P1 cheque was issued towards repayment of Rs.60,000/- borrowed and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. The petitioner was convicted. Learned Sessions Judge also on re-appreciation of evidence confirmed the findings. 4. Though learned counsel argued that courts below did not properly appreciate the CRRP 246/04 4 evidence, on going through the evidence, I find no reason to interfere with the findings of the courts below that Ext.P1 cheque was issued by the petitioner towards repayment of Rs.60,000/- borrowed earlier. Evidence also establish that the cheque was dishonoured for want of sufficient funds and in spite of demand in writing petitioner did not pay the amount. First respondent has complied with all the statutory formalities. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is therefore perfectly legal. 5. Then the only question is regarding the sentence. Considering the entire facts, and circumstances of the cases, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and adequate compensation to the first respondent. CRRP 246/04 5 Revision 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 and compensation of Rs.65,000/- to be paid to the first respondent and in default simple imprisonment for two months. If petitioner has deposited any amount before the learned Magistrate as directed by this court, he need only deposit the balance amount. Petitioner is directed to appear before Judicial First Class Magistrate, Malappuram on 11/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.