IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 Crl.Rev.Pet.No. 1362 of 2002 ---------------------------------------------- CRA.256/1996 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.733/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER/APPELLANT/ACCUSED” P.G.JUSTIN, S/O GEORGE, PUTHUKUNNU PUTHEN VEEDU, POWDIKONAM, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SUNEESH.M. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: 1. SIVARAJAN SYAMALA, PARAMBIL HOUSE, KOTTIYODE, ATTINGAL VILLAGE FROM S.S.COTTAGE, THOTTAVARAM, ATTINGAL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, ERNAKULAM. BY ADV. SRI.G.GOPALAKRISHNAN NAIR FOR R1 SRI.R.BINDU (SASTHAMANGALAM) FOR R1 PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINALREVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.7765/2002 IN CRRP 1362/2002 DISMISSED 16.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1362 of 2002 -------------------------- ORDER Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-I, Attingal in C.C.No.733/1994. Though petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.No.256/1996, learned Additional Sessions Judge confirmed the conviction and modified the sentence to simple imprisonment for two months and also confirmed the compensation of Rs.30,000/- awarded by the learned Magistrate. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that Exhibit P1 cheque was not issued by the petitioner towards discharge of CRRP 1362/02 2 any debt or liability and it was a lost cheque and the evidence do not establish that Exhibit P1 cheque was issued towards discharge of any debt or liability and therefore, the conviction is not sustainable. Learned counsel pointed out that on a perusal of Exhibit P1, it is evident that it was a blank cheque filled up later and the evidence of DW1 with Exhibit D1 establishes that father of the first respondent had filed a complaint before the learned Magistrate based on the same cheque and the statement of the petitioner at the time of questioning under Section 313 of Code of Criminal Procedure shows that when petitioner appeared before the Police, the cheque was blank and in such circumstances, the conviction is not sustainable. 4. Learned counsel appearing for the first respondent pointed out that when PW1 was cross- examined, there was no case for the petitioner that the name of the payee in Exhibit P1 cheque was not written by the petitioner and evidence of DW1 CRRP 1362/02 3 establishes that the complaint before the police was that it was the first respondent who had signed in the petition register, establishing that the amount demanded before the police was also the same amount, covered by Exhibit P1 cheque and therefore, there is no reason to interfere with the conviction. 5. Though petitioner would contend that Exhibit P1 cheque was not issued by him to the first respondent towards discharge of any debt or liability and it was a lost cheque, evidence establish that the contention is not correct. Evidence of first respondent as PW1 establishes that Exhibit P1 cheque was issued by the petitioner towards repayment of Rs.30,000/- borrowed. Though it was suggested to PW1 that the date and the amount in Exhibit P1 cheque were not written in the handwriting of the petitioner, it was not even suggested that the signature seen or the name of the payee written in Exhibit P1 cheque are that of CRRP 1362/02 4 the petitioner. Therefore, it is clear that what was disputed before the trial court, when PW1 was cross-examined, was only the handwriting of the amount and the date shown in Exhibit P1 and not the name of the payee or the signature of the drawer. Evidence of PW1 establishes that first respondent borrowed Rs.30,000/- and towards its repayment, Exhibit P1 cheque was issued. Though, petitioner has a contention that for the very same amount, father of the petitioner filed a complaint before DW1, the Circle Inspector of Police, and under Exhibit D1 notice, petitioner was directed to appear before the Circle Inspector of Police and at that time the cheque was not filled up and finding that it was the lost cheque, petitioner issued instructions to the Bank to stop payment, evidence of DW1 with Exhibit D2 shows that petitioner appeared before the police on 25.12.1993. If the version of the petitioner is correct, on 25.12.1993, petitioner must have the knowledge that CRRP 1362/02 5 the alleged lost cheque was being misused by the father of the first respondent. If that be so, he would have issued a stop memo immediately to the Bank. Evidence of PW2 shows that stop memo was received in the Bank only on 2.7.1997. That alone is sufficient to disbelieve the defence evidence. Petitioner did not take any steps on the alleged loss of the cheque earlier. Evidence establish that Exhibit P1 cheque was issued by the petitioner to the first respondent towards repayment of the amount borrowed earlier. The fact that Exhibit P1 cheque was dishoboured and at that time, there was no sufficient amount in the account, are proved by PW2. First respondent has complied with all the statutory requirements provided under Sections 138 and 142 of Negotiable Instruments Act. That was not disputed. Hence, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal and correct. CRRP 1362/02 6 6. Then the only question is regarding the sentence. The cheque is for Rs.30,000/-. It was issued on 15.6.1994. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and adequate compensation to the first respondent. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. In supersession of the sentence awarded by the learned Magistrate and confirmed by the learned Additional Sessions Judge, petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.35,000/-, to be paid to the first respondent under Section 357(3) of Code of Criminal Procedure and in default, simple imprisonment for two months. If petitioner has deposited any amount, as directed by this Court for suspension of the sentence, he need deposit only CRRP 1362/02 7 the balance amount and first respondent is entitled to withdraw the amount in deposit. Petitioner is also permitted to pay the compensation to the first respondent directly and produce the receipt and establish before the Magistrate that compensation has been paid. Petitioner is directed to appear before Judicial First Class Magistrate-I, Attingal on 30.08.2010. The Magistrate is directed to execute the sentence. 16th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1362/02 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1362 of 2002 -------------------------- ORDER 16th July, 2010