IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 3483 of 2008() ------------------------------ CRA.557/2006 of ADDL. SESSIONS COURT (ADHOC-I), THRISSUR CC.1166/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MOHANANAN S/O. GOVINDAN, KILLIKULANGARA, KOOLIMUTTAM, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.SANTHOSH P. PODUVAL SMT.R.RAJITHA RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. RAJAN S/O. ACHUTHAN, RAMADY, KURICHAKULAM DESOM, LOKAMALESWARAM, KODUNGALLUR. 2. THE STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3483 OF 2008 ------------------------------------------ Dated this the 29th day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in C.C.1166 of 2004 on the file of Judicial First Class Magistrate, Kodungallur. Case of the first respondent was that petitioner borrowed Rs.50,000/- and towards its repayment issued Ext.P1 cheque dated 9.8.2004, drawn in his account and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2 and in spite of Ext.P4 notice served on the petitioner, under Ext.P6, he did not pay the same and thereby committed the offence under section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P6 were marked. Petitioner was examined as DW1. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.60,000/- with a default sentence of simple imprisonment for six months. Petitioner challenged the CRRP 3483/08 2 conviction and sentence before Sessions Court, Thrissur in Crl. Appeal 557 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for one month and compensation of Rs.50,000/- under section 357(3) of Cr.P.C. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that Courts below did not properly appreciate the evidence and when the evidence of PW1 shows that he borrowed the amount and granted a loan to the petitioner, Courts below should have believed the evidence of DW1 that he did not borrow the amount as claimed by PW1 and instead Ext.P1 cheque was issued as a blank cheque towards the security of Rs.10,000/-, which was borrowed from first respondent and repaid by petitioner later and due to the dispute with regard to the interest, the cheque was not returned and misusing the cheque complaint was filed and therefore the conviction is not sustainable. It was also argued that in any case sentence is excessive. 4. On hearing the learned counsel and going through the judgments, I cannot agree with the submission that CRRP 3483/08 3 appreciation of evidence was perverse. Learned Magistrate appreciated the evidence of PW1 and DW1 in the proper perspective and found that Ext.P1 cheque was not issued as blank cheque as canvassed by the petitioner, and instead was issued by petitioner towards repayment of Rs.50,000/- borrowed. Learned Sessions Judge on reappreciation of evidence confirmed the same. Defence case itself is that petitioner had borrowed and issued Ext.P1 cheque to the respondent, though the case was that the amount borrowed was only Rs.10,000/- and the cheque was issued as security and that too as a blank cheque. That case itself establish that first respondent has the capacity to grant a loan. On appreciation of evidence it cannot be said that the findings of the Courts below that Ext.P1 cheque was not issued as blank cheque as canvassed by the petitioner, but was issued towards repayment of Rs.50,000/- borrowed earlier, is perfectly in order. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I.Act is therefore legal. CRRP 3483/08 4 5. Then the only question is regarding the sentence. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. Ext.P1 cheque is for Rs.50,000/-. Interest of justice will be met if the sentence is modified to imprisonment till rising of the Court and a fine of Rs.60,000/- and in default simple imprisonment for two months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate on 30.12.2008. Learned counsel appearing for petitioner prayed three months time to pay the fine amount. In such circumstances petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on the expiry of three months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-