IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.Rev.Pet.No. 3675 OF 2008() ------------------------------ CRA.453/2004 of I ADDL. SESSIONS COURT, THIRUVANANTHAPURAM CC.148/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- AJAYAN, S/O KRISHNAPILLAI, AGED YEARS, JAYA BHAVAN, POOVAR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------- 1. T.K.RAVEENDRAN, LEEJA BHAVAN, MYVALLIKONAM, VENJARAMOODU P.O., THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, COCHIN 682 031. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3675 OF 2008 ------------------------------------------ Dated this the 17th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.148 of 2003 on the file of Judicial First Class Magistrate, Attingal. Case of the first respondent was that petitioner borrowed Rs.85,000/- and towards its repayment issued Ext.P1 cheque dated 8.5.2001 drawn in his account maintained in Kawdiar branch of State Bank of Travancore. Ext.P1 cheque was presented for encashment. Under Ext.P2 it was dishonoured for want of sufficient funds. In spite of Ext.P4 notice demanding the amount covered by the dishonoured cheque, received by revision petitioner under Ext.P6, he did not pay and thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and 6 exhibits were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months, in addition to compensation. Petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.Appeal 453 of 2004. CRRP 3675/08 2 Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court and a fine of Rs,90,000/- and in default simple imprisonment for 4 weeks. On realization of fine it was directed to be paid to first respondent as compensation under section 357 (1)(b) of Cr.P.C. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner argued that Courts below did not properly appreciate the evidence and on the evidence conviction is not sustainable. It was argued that there is no evidence to prove that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and so conviction is not sustainable. Learned counsel finally submitted that petitioner may be granted six months time to pay the fine. 3. On hearing the learned counsel and on going through the judgments of the Courts below, I do not find any reason to interfere with the factual findings. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. Though it was contended by revision petitioner that Ext.P1 cheque was not issued to first respondent but to one Kumar, no evidence was adduced to even probablize the case. CRRP 3675/08 3 The evidence of PW1 establishes that Ext.P1 cheque was issued towards repayment of the amount legally due. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is not disputed that first respondent has complied with the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. In such circumstances conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 4. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.85,000/-. It was issued in May 2001. Learned Sessions Judge modified the sentence to imprisonment till rising of Court and a fine of Rs.90,000/- and in default simple imprisonment for 4 weeks. The sentence cannot be said excessive. In such circumstances I find no reason to interfere with the sentence also. Revision is dismissed. Petitioner is directed to appear before the Magistrate on 30.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-