IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 2868 of 2006() ----------------------------------------- CRA.137/2005 of ADDL. DIST. & SESSIONS COURT FAST TRACK (ADHOC-1), KOZHIKODE CC.41/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOZHIKODE .................... REVN. PETITIONER/ APPELLANT/ACCUSED. -------------------------------------------------------------- H.HASSAN, MUSAIBA MANZIL, THOTTOOLIPADAM PARAMBA, FRANCIS ROAD, KOZHIKODE. BY ADV. SRI.K.M.MOHAMMED KUNHI SRI.M.MUHAMMED SHAFI RESPONDENTS/RESPONDENTS/ COMPLAINANT & STATE. ----------------------------------------------------------------------------------- 1. K.T.HANEES, S/O.MAMU, ADANCHERRY HOUSE, NADUVATTOM, NORTH BEYPORE, KOZHIKODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SMT.T.RESMI DAMODARAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 2868 OF 2006 = = = = = = = = = = = = = = = Dated this the 6th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Kozhikode in Crl.A.137/05. That appeal was preferred against the conviction and sentence passed in C.C.41/01. The trial court convicted the accused u/s 138 and sentenced him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,00,000/- u/s 357(3) Cr.P.C. with default sentence. In appeal the appellate court confirmed the finding on conviction as well as sentence and dismissed the appeal. It is against that the present revision is preferred. 2. At the out set it has to be stated that the Court while exercising revisional jurisdiction has only got limited powers and it is not possible for the Court to re-appreciate the whole matter again unless it is vitiated by illegality, irregularity, perversity or total mis-appreciation of evidence. With this point in mind I analyze the case. It is the case of Cr.R.P. 2868 OF 2006 -:2:- the complainant that the accused had borrowed a sum of 85,000/- on 11.8.00. Towards discharge of the liability he had issued a cheque on 11.10.00 with date of 12.10.00 which when presented for encashment returned with endorsement insufficiency of funds. Notice was issued, for which according to the complainant, a false reply was sent. Thereafter proceedings were initiated u/s 138 of the N.I. Act. 3. The contention of the accused/revision petitioner is to the effect that the father-in-law of the complainant and the revision petitioner were dealing in the business of old iron and the father-in-law used to give him money for which purpose he was in the habit of giving blank signed cheque as security. The evidence in the matter consisted of the oral testimonies of PW1, PW2 and DW1 who were examined and Exts.P1 to P4 were marked. The complainant spoke in tune with the complaint as PW1 and the Manager as PW2 proved regarding the account of the revision petitioner, dishonour of cheque etc. The signature in the cheque is not disputed but the contention is that of a blank cheque given to the father- Cr.R.P. 2868 OF 2006 -:3:- in-law as a security. It has been well settled by decision of the Court that in a 138 proceedings though it is of a criminal nature the evidence adduced by both sides can be looked into to find out the preponderance of probabilities and to ascertain the truth and also the intrinsic reliability and inherent probability of the materials. The Courts below found that the evidence of PW1 is acceptable and rejected the evidence of DW1 on the ground that if really he had issued such blank cheques he should have initiated under normal circumstances, some proceedings or action to get back the blank signed cheques and for the first time the transaction of such a nature is only raised in the reply notice and not earlier. So I cannot find fault with the Courts below in arriving at a decision regarding committing of crime u/s 138 by the revision petitioner. Therefore I confirm the conviction u/s 138. 4. The learned counsel for the revision petitioner submits that at least leniency must be shown in the case of punishment. There is no point in sending a person to jail if Cr.R.P. 2868 OF 2006 -:4:- he has got the real intention to wipe off the liability in a case u/s 138. Therefore I am inclined to modify the sentence by imposing imprisonment for one day and the conversion u/s 357(3)Cr.P.C. into one of fine of Rs.90,000/- which on realisation be paid to the complainant. In the result the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The revision petitioner is directed to undergo simple imprisonment for one day, i.e. till the raising of the Court and to pay a fine of Rs.90,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. (4) The revision petitioner shall appear before the trial court to receive the sentence on 5.2.2009 and also for payment of fine. In default the trial court is directed to execute the sentence. Cr.R.P. 2868 OF 2006 -:5:- (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-