IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 Crl.Rev.Pet.No. 1843 of 2011() ------------------------------ CRA.219/2008 OF ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT-I), THRISSUR ST.1012/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY ................. REVISION PETITIONER / APPELLANT / ACCUSED : ------------------------------------------------------------------------- SASI, S/O.ACHUTHAN, ADIMOOLATHARAYIL HOUSE, KUTTIPPALA, VATTAMKULAM P.O., PONNANI. BY ADV. SRI.RANJITH XAVIER RESPONDENTS / COMPLAINANT AND STATE : ------------------------------------------------------------------- 1. SAITHALAVI, S/O.AHAMMED, POOVATHINGAL HOUSE, CHERUTHIRITHY-673 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) R2 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1843 OF 2011 -------------------------------- Dated this the 3rd day of August 2011 ORDER Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two inferior courts. Negativing his plea of not guilty, the trial Magistrate, on his conviction sentenced him to undergo simple imprisonment for three months and to pay compensation of `80,000/-, the cheque amount, with default term of simple imprisonment for a further period of one month. The learned Sessions Judge, turning down the appeal of the accused, confirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, 1st respondent/complainant has entered appearance. I heard the counsel on both sides. The learned counsel for the revision petitioner/accused assailed the conviction, concurrently, rendered by the two courts below contending that the defence of the accused that the cheque had been issued as a security, that alone, was not appreciated in the proper perspective as to whether in spite of such a dispute canvassed, whether the Crl.R.P No.1843/2011 - 2 - complainant had let in legal evidence to substantiate due execution of the instrument. Business transaction between these two over the supply of foot wears, that too covering a maximum amount of `2,000/-, according to the counsel, improbabalise the version canvassed by the complainant that a cheque had been issued towards such transaction for an amount of `80,000/-. Improbabilities in the case presented by the complainant were not looked into by both courts below, is the submission of the counsel to contend that the conviction imposed is unsustainable. 3. Per contra, the learned counsel for the first respondent/ complainant contended that the finding on fact entered by the inferior courts is not liable to be interfered with in exercise of revisional jurisdiction unless it is shown that the finding so entered is perverse and it could not have been legitimately formed on the materials on record. This was a case where there was no denial of even the execution of cheque other than setting forth a plea that the cheque was given as a security, is the submission of the counsel to contend that there is no merit in the revision. 4. Going through the judgments rendered by the courts below, I find, the evidence in the case consisted of only that of the complainant who was examined as PW1. Though the accused had contended that the cheque had been issued as a security, the learned Magistrate has Crl.R.P No.1843/2011 - 3 - stated in his judgment that when the complainant was subjected to cross examination, there was not even any challenge over the execution of the instrument. Further more, it is seen that to the statutory notice issued intimating the dishonour and demanding the sum covered by the cheque, there was no response from the accused. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of the complainant when he was examined as PW1 found his testimony reliable, trustworthy and credible to accept his case. The learned Sessions Judge, after reappraisal of the evidence, approved the conclusion so formed by the learned Magistrate to sustain the conviction imposed against the accused. In such circumstance, I find, challenge now canvassed in the revision, which is not supported by any material whatsoever need be taken for consideration only for its rejection. Conviction of the accused, on the materials placed, is found to be unassailable. 5. So far as the sentence imposed against the accused, having regard to the fact that penal provisions have been incorporated in the NI Act to give more sanctity to commercial use of cheques, I find, there may be justification in imposing substantive term of imprisonment as part of sentence. However, in the absence of exceptional circumstances warranting such a punishment, substantive term of imprisonment need not be imposed against an offender found guilty of Crl.R.P No.1843/2011 - 4 - the offnece under Section 138 of the NI Act as the dishonour of the cheque might have arisen on account of unforeseen circumstances. Taking into account those aspects, I find, the simple imprisonment for three months imposed as part of the sentence has to be reduced to imprisonment for one day, till the rising of the court. Compensation awarded, as fixed by the learned Sessions Judge, with default term deserves only to be confirmed, and I do so. 6. The learned counsel for the accused seeks for some time to pay the compensation awarded and thus avoid the default term. The learned Magistrate is directed to keep in abeyance the execution of sentence for a period of six weeks from today. The petitioner is directed to appear before the Magistrate concerned on 26-09-2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and to report the payment of compensation awarded. In default of his appearance and nonpayment of the compensation, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge