IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.Rev.Pet.No. 2897 of 2008() ------------------------------ CRA.681/2007 OF ADDL.SESSIONS COURT (ADHOC-II), ERNAKULAM IN CC.2/2006 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT (E & O),ERNAKULAM. .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------- BERNARD NELSON P.C, AGED 53 YEARS, S/O CHACKO VAIDYAR (LATE), PUTHOOR HOUSE , NO. 43/255,PACHALAM P.O., COCHIN. BY ADV. SRI.P.SAMSUDIN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------- 1. P.N. RAJAN, PUTHUKULANGARA HOUSE, NO. 30/1841-A, RESEARCH ROAD, VYTTILA P.O., PONNURUNNI, COCHIN. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2008 ALONG WITH CRRP NO. 2904 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ Crl.R.P. NO.2897 OF 2008 AND Crl.R.P. NO.2904 OF 2008 ------------------------------------------ Dated this the 15th day of September, 2008 O R D E R Petitioner is the accused and first respondent is the complainant. Case of first respondent was that petitioner borrowed Rs.10,000/- each on 18.10.2003 and 20.10.2003 respectively and issued Ext.P1 and P2 cheques dated 18.10.2003 and 20.10.2003 towards the repayment of that amount, drawn in his account maintained in Pachalam branch of Federal Bank Limited. They were dishonoured under Ext.P3 and P4 for insufficient funds. First respondent sent Ext.P5 and P6 notices respectively claiming the amount covered under Ext.P1 and P2 cheques, which were received by the petitioner under Ext.P9 and P10 acknowledgement cards. Petitioner did not pay the amount as demanded under Ext.P5 and P6 notices. First respondent lodged two complaints before the Judicial First Class Magistrate Court-II, Ernakulam, which were taken cognizance as C.C.39 of 2004 and C.C.40 of 2004. Later both the cases were withdrawn and tried by Chief Judicial Magistrate, Ernakulam as Crrp2897/08 &2904/08 2 C.C.2 of 2006 and C.C.3 of 2006. The case of the petitioner was that he did not borrow any amount from the first respondent. It was contended that petitioner had obtained a loan of Rs.5,000/- and Rs.4,000/- respectively from Ponnurunni Temple Committee and first respondent was a surety in the transaction and first respondent is the nephew of Bhaskaran, who was managing the affairs of the temple committee and towards security of the loan transactions two blank cheques were given to the temple committee. It was pointed out that subsequently petitioner failed to pay the instalments as agreed and Ext.D2 notice was sent by the temple committee threatening that blank cheque will be presented and petitioner will be prosecuted and subsequently first respondent sent Ext.D1 notice also threatening action and later petitioner paid the entire amount, but the cheques were not returned back. Ext.P1 and P2 are the said cheques, which were allegedly misused by first respondent by converting them as cheques issued in his favour, when there was no transaction between petitioner and first respondent. Learned Magistrate tried both the cases together. First respondent was examined as PW1 and Ext.P1 to P10 were marked on his side. Learned Magistrate on the evidence found Crrp2897/08 &2904/08 3 him guilty. He was sentenced to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.20,000/- under Section 357(3) of Code of Criminal Procedure and in default to undergo simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in criminal appeals 680 of 2007and 681 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction, but sentence was modified to simple imprisonment for fifteen days and a fine of Rs.25,000/- and the fine amount on realization was directed to be paid to first respondent. Crl.R.P.2897 of 2008 is filed against the judgment in criminal appeal 681 of 2007 and Crl.R.P.2904 of 2008 against judgment in criminal appeal 680 of 2007. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel appearing for petitioner is that courts below did not properly appreciate the evidence. It was argued that when Ext.D2 letter sent by the temple committee shows that petitioner failed to pay the amount obtained from the temple committee and threatened that blank cheque given by the petitioner will be presented and petitioner will be prosecuted, courts below should not have believed the Crrp2897/08 &2904/08 4 evidence of PW1 that he gave loan of Rs.20,000/- in 2003 and therefore on that sole ground the conviction is to be set aside. Learned counsel also argued that Ext.P1 and P2 cheques show that the cheques were issued altering the year ‘1999’ as ‘2003’ without any signature at the place of correction and it fortifies case of the petitioner that Ext.P1 and P2 cheques were created by PW1 making use of the blank cheques entrusted by petitioner to the temple committee. The learned counsel also argued that when first respondent sent Ext.D1 letter in 1996 April, it cannot be believed that he granted a loan of Rs.20,000/- in 2003 and Ext.D3 passbook and Ext.D4 and D5 cheque books and D6 bank account extract establish that Ext.P1 and P2 cheques were not issued from the cheque book, which was being used during 2003 and therefore courts below should have found that Ext.P1 and P2 cheques were not issued to the first respondent towards discharge of an existing liability and instead they were fraudulently created by the first respondent and therefore the conviction is to be set aside. The learned counsel then argued that in any case the sentence awarded is unreasonable and the substantive sentence is to be set aside. 4. While exercising the revisional powers of this Court, Crrp2897/08 &2904/08 5 it is not for this Court to reappreciate the evidence and substitute the findings of this Court to that of the trial Court or first Appellate Court, so long as there was no manifest illegality or flagrant miscarriage of justice due to perverse appreciation of evidence. Though learned counsel vehemently argued relying on Ext.D1 and D2 that Ext.P1 and P2 could only be the blank cheques entrusted by the petitioner while borrowing the amount from the temple committee in 1993 and Ext.D1 and D2 establish the defence case, on going though Ext.D1 and D2 and the evidence of PW1 and DW1, I cannot agree with the submission. The specific case of the petitioner was that he borrowed Rs.9,000/- on two occasions in 1993 from the temple committee and first respondent was the surety and towards the transaction he had issued blank cheques. True, Ext.D2 notice sent on behalf of the temple committee in January 1995 shows the transaction between petitioner and temple committee as well as entrustment of a blank cheque. But Ext.D2 discloses only entrustment of one blank cheque and not two cheques. Ext.D1 letter sent by first respondent in April 1996 also shows that the amount due to the temple committee for which first respondent stood as surety was not repaid by the petitioner till then. Ext.D1 Crrp2897/08 &2904/08 6 discloses that if petitioner fails to pay that amount, the temple committee will take action and if so first respondent cannot do any help to the petitioner. If the case of the petitioner is that he could not pay that amount due to the temple committee, and misusing the cheque entrusted as security to the temple committee the complaint was filed, the case could have been appreciated. But, even according to the petitioner the entire amount due to the temple committee was repaid by him in April 1996 itself. If that be so, that payment could only be subsequent to the receipt of Ext.D1 letter sent by PW1. If that be the case, when under Ext.D2 petitioner was threatened that the blank cheque will be presented and petitioner will be prosecuted and under Ext.D2 first respondent informed petitioner that he can only support the temple committee, in the ordinary human conduct before paying the amount petitioner will insist for return of the cheques entrusted with the temple committee. The evidence of petitioner as DW1 is that while repaying the amount he demanded return of the cheques, and Bhaskaran, the uncle of first respondent informed petitioner that cheques were entrusted to the first respondent. If that be the case, petitioner would have demanded back the cheque from the first respondent Crrp2897/08 &2904/08 7 or would have at least sent a notice asking for return of the cheques. It is seven years thereafter Ext.P1 and P2 cheques were presented before the bank and Ext.P5 and P6 notices were sent to the petitioner demanding the amount covered by Ext.P1 and P2 cheques. If the case pleaded by the petitioner is true at least when Ext.P5 and P6 notices were received by him, he would have sent a reply stating that he had repaid the amount due to the temple committee and the blank cheques entrusted by him were handed over by the temple committee to the first respondent and therefore he is not liable to pay any amount under Ext.P1 and P2 cheques. Conspicuous failure of the petitioner to send a reply to Ext.P5 and P6 is sufficient to disbelieve the case of the petitioner that Ext.P1 and P2 cheques were the blank cheques entrusted by him to the temple committee, as contended by him. It is in such circumstances courts below disbelieved the evidence of the petitioner and accepted the case of the first respondent. 5. Though learned counsel appearing for petitioner vehemently argued that when petitioner failed to pay the amount as agreed and discharged the liability, for which first respondent stood as surety, he would not have been granted a Crrp2897/08 &2904/08 8 further loan of Rs.20,000/- and therefore the case is to be disbelieved, when the case of the petitioner himself is that the amount was repaid by the petitioner due to the temple committee in 1996 April itself, there is no reason to disbelieve the case of first respondent that Rs.20,000/- was borrowed seven years thereafter. In such circumstances, it cannot be said that the view taken by the courts below, on appreciation of evidence, is not a possible or reasonable view that could be taken. If that be so, finding that Ext.P1 and P2 cheques were issued by petitioner towards discharge of existing liability is perfectly correct. First respondent has complied with all the other statutory formalities provided under the Act. It is also proved that cheque was dishonoured for want of sufficient funds. Therefore conviction of the petitioner under Section 138 of Negotiable Instruments Act is perfectly correct. 6. Then the question is whether the sentence is excessive and warrants interference. The learned Sessions Judge modified the sentence to simple imprisonment for 15 days and a fine of Rs.25,000/- and in default simple imprisonment for two months. So long as compensation amount to be paid to the complainant is not reduced, it is not necessary to issue notice to Crrp2897/08 &2904/08 9 the first respondent in the revision which modifying the sentence. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to fine with a default sentence. Instead of the substantive sentence of imprisonment, if the petitioner is sentenced to a fine of Rs.30,000/- and in default to undergo simple imprisonment for two months and payment of Rs.28,000/- to the first respondent, it will meet the ends of justice. 7. The revision petitions are therefore allowed in part. The conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified as follows:- Petitioner is sentenced to pay a fine of Rs.30,000/-, to be paid within three months from today and in default to undergo simple imprisonment for two months. On realization of the fine amount first respondent is to be paid Rs.28,000/- as compensation under Section 357(1) of Code of Criminal Procedure. M. SASIDHARAN NAMBIAR, JUDGE Okb/-