IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.Rev.Pet.No. 3465 of 2008() ------------------------------ CRA.291/2006 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.3064/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- BABITHA KARTHIK, W/O.VINU THOMAS, MANJOORAN HOUSE, KADAYANKADU, SOUTH OF N.H.KANNADI POST, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. A.A.KABEER, S/O.A.M.ALI HAJI, AMBATTUVALAPPIL HOUSE, CITY POST OFFICE, ERUMAKKARA STREET, NURANI, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PP SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3465 OF 2008 ............................................ DATED THIS THE 24th DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in S.T.3064 of 2004 on the file of Judicial First Class Magistrate-II, Palakkad. First respondent is the complainant. Complaint was lodged on the allegation that petitioner borrowed Rs.40,000/- on 15.2.2004 on executing a promissory note and on 18.6.2004, issued Ext.P1 cheque, drawn in her account maintained in Palakkad branch of State Bank of Travancore and return of the amount and when it was presented for encashment, it was dishonoured for want of sufficient funds. In spite of Ext.P4 notice served on the petitioner, demanding the amount covered under Ext.P1, she did not pay and instead sent Ext.P7 reply disputing the liability and thereby committed the offence under Section 138 of N.I.Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P7 were marked. On the side of the petitioner, she was examined as DW1 and the receipt obtained at the time of her marriage was marked as Ext.D1. 2. Learned Magistrate, on the evidence, found the petitioner guilty. She was sentenced to simple imprisonment for three months and a compensation of Rs.40,000/- and in default, simple CRRP 3465/2008 2 imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.291 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that courts below omitted to take note of the evidence of PW1 that Ext.P1 cheque was issued in the account of a partnership firm and as the cheque was not issued in his account, petitioner is not liable for the offence under Section 138 of N.I.Act. Learned counsel also argued that petitioner married a person of another caste and it is out of that vengeance the complaint was lodged. 4. On hearing the learned counsel and going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though petitioner contended that Ext.P1 cheque was not issued towards discharge of an existing liability, evidence of PW1 and DW1 were properly appreciated by learned Magistrate and it was found that Ext.P1 cheque was issued towards discharge of Rs.40,000/- which was borrowed earlier. Learned Sessions Judge reappreciated the evidence and confirmed the said finding. No material was pointed out, which was omitted to be taken note of by CRRP 3465/2008 3 the courts below. Appreciation of evidence cannot be said to be perverse. In any case the view taken by the courts below is a possible and reasonable view that could be taken on the evidence. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. 5. Though learned counsel argued that Ext.P1 cheque was not issued in the account maintained by the petitioner, but in the account of a partnership firm, I do not find such a plea raised by petitioner at the time of evidence. Even when questioned under Section 313 of Code of Criminal Procedure, there was no such case for the petitioner. Learned counsel built up the argument based on the evidence of PW1 that petitioner was a partner of a partnership firm and the liability is that of the partnership firm. But PW1 was not asked whether the account in which Ext.P1 cheque was issued relates to an account maintained by a partnership firm. In the absence of such a case, it cannot be said that Ext.P1 cheque was not issued by petitioner in the account maintained by him. Therefore conviction of the petitioner for the offence under Section 138 of N.I.Act is legal and correct. 6. Then the question is with regard to the sentence. Learned Magistrate sentenced petitioner to simple imprisonment for three CRRP 3465/2008 4 months. It was confirmed by the Sessions Judge. So long as the sentence is not to be varied or modified against the interest of the first respondent, it is not necessary to issue notice to him. Interest of justice will be met, if sentence is modified to imprisonment till rising of court and a fine for the amount covered by the dishonoured cheque with a direction to pay the same on realisation to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 7. Revision petition is allowed in part. Conviction of petitioner under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.40,000/- and in default, simple imprisonment for two months. On realisation of the fine, it is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted three months time to pay the fine. Petitioner is directed to appear before learned Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-