IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2609 of 2003() ------------------------------ CRA.479/2000 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.326/1999 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- JINAN KUMAR, S/O.KUTTIKRISHNAN NAIR, KALORATH MEETHAL HOUSE, THALAKKULATHUR, KOZHIKODE. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. T.V.SASIDHARAN, S/O. RAMANKUTTY, IYYAM VEETTIL HOUSE, THALAKKULATHUR AMSOM, DESOM, KOZHIKODE TALUK. R1 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA SRI.M.ASOKAN FOR R2 SRI.DEVAPRASANTH.P.J. FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.2609 OF 2003 --------------------------------------------- Dated 26th July, 2010 O R D E R Revision petitioner is the accused in S.T.326/1999 on the file of Chief Judicial Magistrate, Kozhikode. Second respondent is the complainant. Learned Chief Judicial Magistrate convicted and sentenced the petitioner for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions court, Kozhikode in Crl.A.479/2000. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for CRRP 2609/03 2 the revision petitioner and second respondent were heard. 3. Argument of the learned counsel appearing for the revision petitioner is that as per the complaint filed by second respondent petitioner borrowed Rs.1,00,000/- and issued Ext.P1 cheque and finding of the courts below is that second respondent deposited Rs.1,00,000/- and towards its repayment Ext.P1 cheque was issued and this contrary case should not have been accepted by the courts below. It was argued that as stated in the statement filed at the time of questioning under Section 313 of Code of Criminal Procedure petitioner has narrated how Ext.P1 cheque was issued and it was issued, as there was settlement between the parties that his property could be sold and amount could be paid and in breach of that agreement suits were instituted and orders of CRRP 2609/03 3 attachment of the property was obtained from court preventing the petitioner from selling the property and paying the amount and it is in such circumstances, petitioner was compelled to file insolvency petition before the Sub court, Kozhikode and in such circumstances, conviction is not sustainable. Learned counsel finally submitted that even if the conviction is confirmed sentence may be modified and petitioner may be allowed to pay compensation directly to the second respondent. 4. Learned counsel appearing for second respondent submitted that courts below rightly appreciated evidence and there is no reason to interfere with the conviction and sentence. 5. As rightly found by courts below when petitioner was questioned under Section 313 of Code of Criminal Procedure, though he CRRP 2609/03 4 denied the evidence tendered by PW1, in the written statement filed he admitted receipt of Rs.1,00,000/- from the second respondent and also issuance of Ext.P1 cheque. Though learned counsel argued that there is vast difference between the case set up by the second respondent and the one admitted by the petitioner, I cannot agree. Case of the second respondent is that Rs.1,00,000/- was payable by the petitioner and towards its repayment Ext.P1 cheque was issued. Statement filed by the petitioner shows that he received Rs.1,00,000/- from the second respondent and he had paid interest but not repaid the principal as he was in financial difficulties he could not repay the deposits to the depositors and pursuant to a settlement, Ext.P1 cheque was issued on the understanding that he will pay the amount on selling his property. Therefore, CRRP 2609/03 5 as rightly found by the courts below it is proved that Ext.P1 cheque was issued towards discharge of liability. Whether that liability arose on a borrowal or for refund of the deposit, makes no difference. It is in discharge of the liability. There is no case that second respondent did not comply with the provisions of Sections 138 and 142 of Negotiable Instruments Act and hence conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 6. Then the only question is regarding the sentence. Learned Magistrate sentenced petitioner to simple imprisonment for three months. It was confirmed by learned Sessions Judge. Ext.P1 cheque was for Rs.1,00,000/- and it was issued on 12/5/1999. Considering the entire facts and circumstances of the case, CRRP 2609/03 6 interest of justice will be met if sentence is modified to imprisonment till rising of court and a compensation of Rs.1,15,000/- and in default simple imprisonment for three months. Petitioner is at liberty to deposit the compensation amount before the learned Magistrate or to pay it directly to the second respondent and produce receipt before the learned Magistrate and establish that compensation is paid. 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.1,15,000/- and in default simple imprisonment for three months. Petitioner is permitted to pay the compensation directly to the second respondent and produce CRRP 2609/03 7 receipt before the learned Magistrate and establish that compensation is paid. Petitioner is directed to appear before the Chief Judicial Magistrate, Kasargod on 2/9/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.