IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 371 of 2001() ----------------------------- CRA.84/1997 of SESSIONS COURT, MANJERI CC.23/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): --------------------- K.MOHAMMED ALI, S/O.KUNHIKOYA, KOOTHRADAN HOUSE, MELATUR P.O. MALAPPURAM DIST. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): --------------- 1. P.D.SUNNY, S/O.DEVASSIA, PULABHUDIYIL HOUSE, PATHIRIKODE P.O., MALAPPURAM DIST. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.PROMY KAPRAKKATT. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.371 of 2001 ----------------------------------------- Dated this the 22nd July, 2009 O R D E R This revision is filed by accused, who was convicted and sentenced by Magistrate Court to undergo rigorous imprisonment for six months under Section 138 of the Negotiable Instruments Act. The conviction and sentence were confirmed in appeal by the Sessions Court. Hence, this revision. 2. According to prosecution, accused-revision petitioner borrowed a sum of Rs.40,000/- from the complainant in January, 1992 for the purpose of going to Gulf for job and he promised to return the amount on his reaching Gulf. Though complainant made several requests for money, accused did not return the same. So, on 18.8.1994, complainant went to accused again and made a request, while, he issued Exhibit P1 cheque dated 19.10.1994 towards discharge of the debt of Rs.40,000/-. On presentation of the cheque, it was dishonoured with the endorsement, “funds insufficient”. Crl.RP.371/01 2 Exhibit P2 is the memo dated 20.10.1994. Exhibit P3 notice was issued thereafter on 21.10.1994 through a lawyer, intimating the dishonour of cheque and also demanding payment of the money. The notice was returned unclaimed. Thereafter, a complaint was filed under Section 138 of the Negotiable Instruments Act, in accordance with law. 3. PW1 and PW2 were examined and Exhibits P1 to P5 were marked on the side of the prosecution. Accused did not adduce any evidence. But, he filed a statement, while questioned under Section 313 Cr.P.C, denying the allegations and contended that he had not given Exhibit P1 cheque to the complainant that he did not owe any money to the complainant, the cheque was not dishonoured for insufficiency of funds and the Manager was not examined to prove dishonour, no notice was issued intimating dishonour or demanding payment. Neither the accused nor any of his relatives were informed of dishonour of cheque etc. 4. Both the courts below concurred with the findings that evidence adduced by prosecution proves that the cheque, Crl.RP.371/01 3 Exhibit P1 was issued by the accused to the complainant and that it was dishonoured with the endorsement “funds insufficient” as disclosed from the evidence of PW1, who is the Manager of the bank. It was also held that notice under Section 138(b) of the N.I Act was issued and this fact was proved by postal records, postal receipt and acknowledgment card. It was also found that the offence under Section 138 of the N.I Act is made out and the accused is guilty of the said offence. 5. The revision petitioner raised a ground as per the revision memo that there is no prior notice under Section 138 (b) of the N.I Act. There is a concurrent finding of fact on this aspect by both the courts below and on going through the evidence and the findings, I do not find any ground to interfere in those findings. Postal receipts and the postal acknowledgment card and the notice returned with the relevant endorsement are produced in court. Exhibit P4 is unserved notice with postal cover, on which there are endorsements to the effect that the addressee had gone out Crl.RP.371/01 4 and intimation was issued. Exhibit P3 series is a copy of lawyer notice and postal receipt. PW1 has given evidence to support his case. I am satisfied that this fact is proved by prosecution. The contention that there is no notice under Section 138(b) of the N.I Act cannot be accepted. 6. The other ground taken is that the court below misappropriated and misconstrued the whole facts and circumstances of the case. This is a vague ground raised. The evidence of PW1 and PW2, who are the complainant and the Bank Manager, is appreciated in the right perspective by the court below and there is nothing to interfere with the finding that petitioner has committed offence under Section 138 of the N.I Act. As rightly held by the courts below that the accused has no explanation how his cheque happened to be in the hands of the accused etc. 7. Other ground raised is that the sentence is excessive. The sentence passed is only rigorous imprisonment for six months. It cannot be said that the sentence is excessive. Considering the facts and circumstances of this case, however, Crl.RP.371/01 5 I find that the complainant has sustained a loss and the sentence can be modified, if accused compensates the loss. Hence, the sentence is modified and the following order is passed: (i) The conviction passed against the accused under Section 138 of the N.I Act is confirmed. (ii) The sentence is modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of court and to pay an amount of Rs.60,000/- as compensation to the complainant under Section 357(3) Cr.P.C. If amount is not paid, petitioner shall undergo five months' simple imprisonment. The Criminal Revision Petition is partly allowed. K.HEMA, JUDGE vgs. Crl.RP.371/01 6 K.HEMA, J. ------------------------------ Crl.R.P.NO.371 of 2001 ------------------------------ O R D E R 22.7.2009