IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 322 of 2004() ----------------------------- CRA.204/2001 of ADDL. SESSIONS COURT, (ADHOC-I), PALAKKAD ST.2547/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KRISHNANKUTY S/O. CHELLAN, RESIDING AT PULIYASSAR VEEDU, KARIPOTTIL, PUDUNAGARAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): NOT PARTY/RESPONDENT/NOT PARTY/COMPLAINANT --------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. ABDUL MAJEED S/O. UMMER, RESIDING AT VALUPARAMBIL VEEDU, VALLAPUZHA, OTTAPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.SANTHEEP ANKARATH FOR R2 R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.322 OF 2004 --------------------------------------------- Dated 12th August, 2010 O R D E R Petitioner, the accused in S.T.2547/1997 on the file of Judicial First Class Magistrate, Pattambi filed this revision challenging his conviction and sentence for the offence under Section 138 of Negotiable Instruments Act. Second respondent lodged the complaint, taken cognizance by the learned Magistrate contending that petitioner borrowed Rs.40,000/- and issued Ext.P1 cheque dated 7/4/1997 drawn in his account maintained in Palakkad District Treasury and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and second respondent sent Ext.P4 notice CRRP 322/04 2 demanding the amount covered by the dishonoured cheque which was received by the petitioner under Ext.P3 acknowledgment and petitioner failed to pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. 2. On appearance petitioner pleaded not guilty. Second respondent was examined as PW1. Ext.P1 to P5 were marked. Petitioner was examined as DW1 and Exts.D1 and D2 were marked. Learned Magistrate on the evidence found that petitioner borrowed Rs.40,000/- from second respondent and issued Ext.P1 cheque towards its repayment and Ext.P1 was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities. Petitioner was convicted and sentenced to simple imprisonment for three months and compensation of Rs.40,000/- without default CRRP 322/04 3 sentence. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.204/2001. Learned Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 3. Learned counsel appearing for the petitioner was heard. 4. Argument of the learned counsel is that courts below did not properly appreciate the evidence and on the evidence the conviction is not sustainable. Learned counsel submitted that in any case, sentence may be modified and petitioner is prepared to pay the compensation. 5. Evidence of PW1 accepted by the learned Magistrate establish that petitioner borrowed Rs.40,000/- and issued Ext.P1 cheque towards its repayment. Suggestion made by the CRRP 322/04 4 petitioner when PW1 was cross examined was that he had borrowed Rs.10,000/- from one Muhammed and issued a blank cheque and it was misused by the second respondent and he did not borrow any amount from the second respondent. But when petitioner was examined as DW1, his case was that he borrowed Rs.10,000/- from Muhammed and issued a cheque for that amount based on which Muhammed instituted proceedings which had finally settled between the parties. It is his evidence that subsequently through a broker petitioner entrusted a blank cheque, which was misused by the second respondent. First of all, such a case was not put to PW1 and was put forth for the first time when petitioner was examined. The alleged broker was not examined. On the other hand, suggestion made to PW1 that he issued a blank cheque to Muhammed which was misused by the second respondent was proved to CRRP 322/04 5 be false by evidence of DW1 himself. In such circumstances, learned Magistrate and learned Sessions Judge was perfectly correct in accepting the evidence of PW1, holding that petitioner borrowed Rs.40,000/- and issued Ext.P1 cheque towards its repayment. Evidence of PW1 established that when the amount was borrowed, on the request of the petitioner second respondent filled up the cheque and thereafter petitioner signed the cheque and handed it over to the second respondent. It is established that Ext.P1 cheque was issued towards discharge of the liability. 6. Though petitioner also raised a contention that he did not receive the statutory notice, DW1 admitted that address of the petitioner shown in Ext.P4 notice is the correct address. Ext.P3 postal acknowledgment card establishes that Ext.P4 notice which was CRRP 322/04 6 sent by registered post, was served on the addressee. Though petitioner raised a contention that signature seen in the postal acknowledgment card is not his address, he did not examine the postman and did not adduce any evidence, except his interested version. Though Ext.D1 attendance register show that he had attended all the working days in that month, where he is working as a Peon, it does not establish that petitioner did not receive Ext.P4 notice. Learned Magistrate and learned Sessions Judge was perfectly justified in finding that second respondent had complied with all the statutory formalities including demanding the amount covered by the dishonoured cheque in writing. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 7. Then the only question is regarding CRRP 322/04 7 the sentence. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and adequate compensation. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. In supersession of the sentence awarded by the learned Magistrate and confirmed by the learned Sessions Judge, petitioner is sentenced to imprisonment till rising of court and compensation of Rs.50,000/- (Rupees Fifty Thousand only) and in default simple imprisonment for one month. Petitioner is permitted to deposit/pay the amount directly to the second respondent and establish before the learned Magistrate that he had paid the CRRP 322/04 8 compensation. If petitioner has deposited any amount before the learned Magistrate pursuant to the direction given by this court while suspending the sentence, petitioner need deposit/pay the only balance amount and the amount in deposit shall be paid to the second respondent. Petitioner is directed to appear before the Judicial First Class Magistrate, Pattambi on 7/9/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.