IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 153 of 2005(D) ------------------------------ CRA.270/2002 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.198/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- SIVADAS, S/O.NANU, THADATHIL VEEDU,,ALA VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR SRI.R.RANJITH RESPONDENT(S)/COMPLAINANT & STATE: --------------- 1. VASANTHI VIJAYA SINGH, W/O.VIJAYA SINGH, KOTTAPARAMBIL VEEDU, ALA VILLAGE, CHENGANNUR TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.HARIDAS FOR R1 R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A .NO.1140/05 IN CRRP.153/05 DISMISSED 4/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.153 OF 2005 --------------------------------------------- Dated 4th June, 2010 O R D E R Petitioner, the accused in C.C.198/2000 on the file of Judicial First Class Magistrate-I, Chengannur was convicted and sentenced to simple imprisonment for five months for the offence under Section 138 of Negotiable Instruments Act. Though petitioner challenged the conviction and sentence before Additional Sessions court-II, Mavelikara in Crl.A.270/2002, learned Additional Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Argument of the learned counsel is that Ext.P1 cheque is in the name of CRRP 153/05 2 first respondent as well as her husband and therefore, payee as defined under Section 7 of Negotiable Instruments Act is both first respondent and her husband and hence first respondent alone is not entitled to present the cheque or demand the amount covered by the dishonoured cheque or lodge a complaint and therefore on that sole ground, the conviction is bad. Learned counsel would then argue that evidence of PW1 shows that Rs.25,000/- was received from the petitioner and if that be so, petitioner is not entitled to claim Rs.50,000/- covered by Ext.P1 cheque as Rs.25,000/- has already been received and in such circumstances, conviction is to be set aside. Learned counsel finally argued that in any case, sentence awarded is excessive and it may be modified. CRRP 153/05 3 3. Learned counsel appearing for the respondent pointed out that defence raised by the petitioner was rightly rejected by both the courts. It was pointed out that in Ext.P6 reply the stand taken by the petitioner was that as first respondent stood as surety by offering his property, for a loan taken by the petitioner, as insisted by the first respondent, he had given six cheques as security and the dishonoured cheque is one among the cheques. But when PW1 was cross examined, it was brought out that that loan was cleared in 1998 itself and if any such cheque was handed over by the petitioner to the first respondent as security, he would have taken steps to get them back and in such circumstances, that case cannot be believed. It was also pointed out that as per the CRRP 153/05 4 evidence of the petitioner as DW1, it was not six cheques which was handed over, as according to him originally two cheques were handed over and out of the two cheques one was returned and as insisted by the first respondent, five more cheques were handed over and the dishonoured cheque is one of the original cheques handed over to the first respondent and if that be the case, allegation in Ext.P6 reply should be that petitioner had originally handed over two cheques and thereafter one cheque was returned and five more cheques were additionally entrusted. But there is no such a case. It was also pointed out that if security for Rs.2,50,000/- is to be furnished by a cheque, there is no necessity for entrusting six cheques as alleged and that itself falsifies the case and evidence of PW1 was CRRP 153/05 5 rightly accepted by the courts below rejecting the evidence of DW1. 4. Payee as defined under Section 7 of Negotiable Instruments Act is the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. Ext.P1 cheque is drawn in favour of Mrs.Vasanthi Vijaya Singh/Vijaya Singh. Though payee shown is the first respondent and her husband, it is either first respondent or her husband and not jointly. If cheque is in favour of the first respondent and her husband jointly, it could have been contended that payee is not first respondent alone but her husband also. On the other hand, as seen from Ext.P1, payee is either the first respondent or her husband. Hence it is not mandatory that cheque should be encashed by both and not by CRRP 153/05 6 first respondent alone. Payee is naturally either the first respondent or her husband. In such circumstances, challenge based on the payee as seen in Ext.P1 can only be rejected. 5. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 and DW1 and accepted the evidence of PW1, disbelieving that of DW1. Though learned counsel appearing for the petitioner argued that appreciation of evidence is not proper and evidence of PW1 should not have been believed, as rightly pointed out by the learned counsel appearing for the first respondent, on the evidence defence case can only be rejected. In Ext.P6 reply notice sent immediately on receipt of Ext.P3 notice, sent under Section 138(b) of Negotiable Instruments Act demanding the amount covered by Ext.P1 dishonoured cheque, the stand CRRP 153/05 7 taken by the petitioner is that first respondent stood as surety for a loan taken by the petitioner by offering his property as security and petitioner furnished six cheques including the dishonoured cheque as security to the first respondent. There is no case that originally, as insisted by the first respondent, petitioner handed over two cheques and later one cheque was returned and additional five cheques were demanded or handed over. The very case is improbable, because if first respondent wanted security by way of a cheque as he offered security for the loan availed by the petitioner, there is no necessity to insist for six cheques as one cheque for Rs.2,50,000/- would be sufficient. Whatever it be, if originally two cheques were handed over and subsequently one was returned CRRP 153/05 8 and five more were entrusted, it would have been stated in Ext.P6 reply notice. The evidence of DW1 establishes that defence case can never be true. 6. Other argument raised by the learned counsel is that PW1 admitted that Rs.25,000/- was received. It is to be born in mind that petitioner has no case that he has repaid Rs.25,000/- out of Rs.50,000/- received from the first respondent. Portion of deposition of PW1 relied on by the learned counsel appearing for the petitioner is the answers given by PW1 with regard to his source of income. When he was questioned about the source, PW1 deposed that she used to receive several amounts and added that petitioner had given back Rs.25,000/-. PW1 did not depose that Rs.25,000/- so received was out of Rs.50,000/- CRRP 153/05 9 covered by the dishonoured cheque. It was not even suggested to PW1 that Rs.25,000/-, which was admitted to be received by the petitioner, was out of the money due under the dishonoured cheque. On the other hand evidence of PW1 establishes that petitioner had several transactions. In such circumstances, I find no reason to interfere with the conviction for the offence under Section 138 of Negotiable Instruments Act. 7. Then the only question is regarding the sentence. Learned Magistrate sentenced petitioner to imprisonment for five months. No compensation was awarded. In such circumstances, considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified granting adequate compensation to first respondent. CRRP 153/05 10 Revision petition is allowed. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Petitioner is sentenced to imprisonment till rising of court and compensation of Rs.55,000/-(Rupees Fifty Five Thousand only) and in default simple imprisonment for two months. Petitioner is directed to appear before the Magistrate on 5/7/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.