IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.Rev.Pet.No. 121 of 2001() ----------------------------- CRA.232/1998 of ADDL.SESSIONS COURT, KOZHIKODE CC.704/1995 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- E.VIKRAMAN, S/O. GOPALAN, EPPARAMBATH HOUSE, IRINGAL AMSOM DESOM, KOYILANDY. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE --------------- 1. K.M.KUNHIRAMAN, S/O. KORAN, KADAVATHMANNIL HOUSE, THIRUVALLUR AMSOM, VELLUKKARA DESOM, VADAKARA. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.C.VALSALAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.R.P.121 of 2001 -------------------------------------- Dated: SEPTEMBER 9, 2009 ORDER The revision petitioner is the accused in C.C.No.704/1995 of Judicial First Class Magistrate Court, Vadakara, and the appellant in Crl.A.No.232/1998 of Addl. Sessions Court, Kozhikode. He challenges his conviction under sec.138 of the Negotiable Instruments Act and sentence to undergo simple imprisonment for a period of six months which is confirmed in appeal. The accused has now come up in revision. 2. The case of the revision respondent/complainant as alleged in the complaint and as testified by him as PW.1 before the trial court in brief is this: PW.1 paid Rs.45000/- to the accused who had agreed to arrange a B.Ed. seat for his daughter. As the accused did not obtain the B.Ed. seat for the daughter of PW.1, he demanded back the money for which the accused issued a cheque, Ext.P1 dated 20.2.1995 drawn on the Iringal Service Co-operative Bank. When presented, the cheque was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. To the notice Ext.P3 dated Crl.R.P. 121/2001 2 28.3.1995, the revision petitioner/accused did not send any reply nor repaid the amount. Therefore the revision respondent filed a private complaint before the trial court. 3. On receipt of the complaint the trial court recorded the sworn statement of the complainant and took cognizance of the case. The accused, on appearance before the trial court, pleaded not guilty to a charge under sec.138 of the Negotiable Instrument Act. 4. Pws.1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant before the learned Magistrate. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. On the side of the accused, DW.1 was examined. 5. The trial court on an appreciation of evidence found the accused/revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him to undergo simple imprisonment for six months. The lower appellate court confirmed the said conviction and sentence. Now the accused has come up in revision. 6. The main question which arises for consideration is Crl.R.P. 121/2001 3 whether the conviction and sentence of the revision petitioner by both the courts below can be sustained. 7. It is proved by the evidence of PW.1 and Exts.P1 to P5 that the accused issued the cheque Ext.P1 for Rs.45000/- which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner/accused and that in spite of the notice Ext.P4 the revision petitioner did not repay the amount nor sent any reply. The main argument advanced by the counsel for the revision petitioner is that the revision petitioner/accused allegedly received the amount from PW.1 agreeing to arrange a B.Ed. seat for the daughter of PW.1 that since the object for which the accused obtained the money from PW.1 is unlawful, that therefore there was no legally enforceable debt for the cheque Ext.P1 and that therefore on that ground the accused has to be acquitted. There is no merit in the above contention. A Single Bench of this Court has held in Francis Mathew v. State of Kerala (2005 (3) KLT 288) that the reasoning that the cheque is to be made unenforceable as opposed to public policy cannot be sustained and that the accused is not entitled to retain the amount which he received unlawfully and illegally. In the Crl.R.P. 121/2001 4 present case also a similar situation has arisen. The accused has received the amount agreeing to secure a B.Ed. seat for the daughter of the complainant. The accused cannot be permitted to be benefited by retaining the amount which he is not entitled to. That being so, applying the principles laid down in the above decision, the amount due under the cheque cannot be rejected on the ground that the purpose for which the amount was borrowed is opposed to public policy. 8. I have gone through the evidence of PW.1. Nothing was brought out during his cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P5. That apart, to the notice Ext.P4 demanding the amount, the accused did not send any reply. That being so, the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW.1 and coming to the conclusion that the accused has issued the cheque Ext.P1 for a legally enforceable debt and that in spite of the statutory notice Ext.P4, the accused did not repay the amount which is an offence punishable under sec.138 of the Negotiable Instruments Act. That being so, the conviction Crl.R.P. 121/2001 5 of the revision petitioner under sec.138 of the Negotiable Instruments Act has to be confirmed. 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for six months which is confirmed in appeal. Taking into consideration the fact that the transaction took place in 1995, and in the circumstances of the case I feel that a fine of Rs.45000/-, in default to undergo simple imprisonment for one month, would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner by both the courts below under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to pay a fine of Rs.45000/-, in default to undergo simple imprisonment for one month. The fine, if realised, shall be paid to the revision respondent/complainant as compensation. Two months time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE mt/-