IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3358 OF 2008() ------------------------------ CRA.386/2005 of ADDL. SESSIONS COURT (ADHOC-II), THRISSUR ST.68/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------- K.V.MAMUNNI, S/O.VELAYUDHAN, KUTTIKKATTUPARABIL HOUSE, VENGINISSERY, PARALAM P.O.,THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. CHANDRARAJAN, S/O. VELAYUDHAN CHETTIAR, VANIYAN HOUSE, KANNAMKULANGARA, THRISSUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3358 OF 2008 ------------------------------------------ Dated this the 11th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T.68 of 2002 on the file of Judicial First Class Magistrate-II, Thrissur. Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-II, Thrissur. Petitioner challenged the conviction and sentence before Additional Sessions Court, Thrissur in Crl. Appeal 386 of 2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel appearing for the revision petitioner is that Courts below were not justified in casting the burden on revision petitioner that Ext.P1 cheque was not issued by the revision petitioner, when he had denied the signature in Ext.P1 cheque and an application was filed to send CRRP 3358/08 2 Ext.P1 cheque to an expert to compare the signature with the signature of revision petitioner seen in Ext.D1, the specimen card. It was argued that by examination of revision petitioner who denied the signature in Ext.P1 cheque, he had discharged that burden and once he had discharged the initial burden, it is for the first respondent to establish that the signature in Ext.P1 cheque is the signature of the revision petitioner and when opinion of an expert was not obtained, Courts below were not justified in comparing the signatures and taking a decision on the identity of the signature. It is therefore argued that the conviction is not sustainable. 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the conviction or the sentence. It is the specific case of the first respondent that revision petitioner borrowed Rs.75,000/- in January, 2001 and thereafter towards its repayment issued Ext.P1 cheque and when the cheque was presented for encashment, it was dishonoured. Though learned counsel argued that issuance of Ext.P1 cheque is not proved, learned Magistrate and learned Sessions Judge appreciating the evidence of PW1 as well as DW1 found that Ext.P1 cheque was CRRP 3358/08 3 issued by the revision petitioner. The main argument of the learned counsel is that when the revision petitioner denied his signature in Ext.P1 cheque and filed an application for getting a report of an expert, after comparing Ext.P1 cheque with the signature of the revision petitioner seen in Ext.D1 specimen card, Courts below were not justified in not comparing the signature in Ext.P1 cheque with Ext.D1 to arrive at a finding. 5. Learned Magistrate has given cogent reasons for not forwarding Ext.P1 cheque to an expert as sought for by the revision petitioner. The attempt of the revision petitioner was to get signature in Ext.P1 compared with the signature in D1. The learned Magistrate has compared the signatures and found that the signatures are identical, though there is some slight variation because of the time lag. I find no reason to interfere with that factual finding. Evidence establish that Ext.P.1 cheque was issued by revision petitioner towards discharge of an existing liability. It is not disputed that cheque was dishonoured for want of sufficient funds. Evidence also establish that within the statutory period first respondent sent Ext.P6 notice, in the correct address of the revision petitioner and it was returned as unclaimed. In such circumstances conviction of the revision CRRP 3358/08 4 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 revision petitioner to imprisonment till rising of the Court in addition to a compensation for the amount covered by the dishonoured cheque, which was confirmed by the learned Sessions Judge. Learned counsel submitted that as compensation was awarded under section 357(3) of Code of Criminal Procedure, the default sentence is not legal. In view of the decision of the Apex Court, that when compensation is granted under section 357(3) of Cr.P.C., default sentence cannot be imposed, default sentence is set aside. Revision is disposed confirming the conviction and sentence but deleting the default sentence. Petitioner is granted two months time to pay the compensation. M. SASIDHARAN NAMBIAR, JUDGE Okb/-