IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 3243 of 2008() ------------------------------ CRA.786/2006 of IVTH ADDL.SESSIONS COURT, ERNAKULAM CC.1386/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, NORTH PARUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- RADHAKRISHNAN, S/O.NANAPPAN, AGED 47 YEARS, KUMBALATHU PARAMBIL VEEDU, MADAPLATHURUTH, MOOTHAKUNNAM, ERNAKULAM. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL SRI.P.H.SAVANKUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ------------------ 1. RUSTON, S/O.BHASKARAN, NELLIPARAMBATHU VEEDU, PARAYAKADU, CHITTATTUKARA, N.PARAVUR (DIED) 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. KANAKA RUSTON, W/O.RUSTON, NELLIPARAMBATHU VEEDU, PARAYAKADU, CHITTATTUKARA, N.PARAVUR. 4. PRAJESH, S/O.RUSTON, S/O.RUSTON, NELLIPARAMBATHU VEEDU, PARAYAKADU, CHITTATTUKARA, N.PARAVUR. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3243 OF 2008 ------------------------------------------ Dated this the 29th day of October, 2008 O R D E R Petitioner is the accused and respondents 3 and 4 are the legal heirs of the original complainant who were impleaded in the appeal, on the death of the complainant, in C.C. 1386 of 2002 on the file of Judicial First Class Magistrate, North Parur. Husband of second respondent lodged the complaint contending that petitioner borrowed Rs.1,50,000/- on 11.8.2002 and towards its repayment issued Ext.P1 postdated cheque dated 11.9.2002 drawn in his account maintained in Thripunithura branch of the Catholic Syrian Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. In spite of notice demanding the amount covered by the dishonoured cheque, petitioner did not pay the amount and instead sent Ext.P8 reply disputing the liability and thereby committed the offence. Learned Magistrate took cognizance of the offence. Petitioner appeared and pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P8 were marked. Petitioner did not adduce any evidence. He was also not CRRP 3243/08 2 examined. Learned Magistrate on the evidence disbelieved the defence case that Ext.P1 cheque was issued as a blank cheque as security to the loan obtained by petitioner from the sister of first respondent as canvassed by the petitioner and accepted the case of first respondent that it was issued towards repayment of the loan obtained. Petitioner was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.1,50,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl. Appeal 786 of 2006. learned Sessions Judge on reappreciation of evidence confirmed the conviction but reduced the sentence to simple imprisonment for six months, retaining the compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that by cross- examining PW1, the first respondent, petitioner has probablised the defence case and in the absence of any other evidence to prove that petitioner had borrowed Rs.1,50,000/- and issued Ext.P1 cheque towards its repayment, Courts below were not justified in convicting the petitioner. CRRP 3243/08 3 4. Case of the first respondent was that petitioner borrowed Rs.1,50,000/- on 11.8.2002 and on the same day issued Ext. P1 postdated cheque for encashing it on 11.9.2002 and when it was presented for encashment it was dishonoured for want of sufficient funds. The defence case was that petitioner had no transaction with first respondent and he had borrowed Rs.50,000/- from the sister of the first respondent, who is a police constable and in that transaction Ext.P1 cheque was issued as a signed blank cheque and that too as security and later the amount was paid but cheque was not returned and no amount is due from the petitioner to first respondent and hence no offence under section 138 of Negotiable Instruments Act was committed. Though learned counsel argued that from evidence of PW1 it is not proved that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and the defence case was probablised, learned Magistrate and learned Sessions Judge on appreciating the evidence found that petitioner borrowed Rs.1,50,000/- and issued Ext.P1 cheque towards its repayment and did not accept the defence case. Learned counsel made available the copy of the deposition of PW1, the copy of Ext.P9 reply notice and copy of the questioning under section 313 of CRRP 3243/08 4 Cr.P.C. On going through these materials, I cannot agree with the submission of the learned counsel that appreciation of evidence was perverse. Even though it was suggested to PW1 that petitioner had borrowed money from his sister and issued a blank cheque and Ext.P1 is that cheque, PW1 denied the case. Apart from the suggestion, no other material was produced in support of the case. In fact evidence of PW1 with regard to the original transaction on 11.8.2002 was not seriously cross- examined. On appreciating the evidence the view taken by Courts below is a probable and reasonable view that could be taken on the evidence. It is proved that Ext.P1 cheque was issued towards the repayment of a legally recoverable debt. It is also proved that the cheque was dishonoured for want of sufficient funds and complainant had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner is perfectly legal. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the substantive sentence to simple imprisonment for six months retaining the compensation. Ext.P1 cheque is for Rs.1,50,000/-. Interest of justice will be met CRRP 3243/08 5 if the sentence is modified to imprisonment till rising of the Court and a fine for the amount covered by dishonoured cheque with a direction to pay the same on realisation to respondents 2 and 3 as compensation. So long as the sentence is not varied or modified against the interest of respondents 2 and 3, it is not necessary to issue notice to them. Revision is therefore allowed in part. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.1,50,000/- and in default simple imprisonment for two months. On realisation of fine it is to be paid to respondents 2 and 3 as compensation under section 357 (1) of Cr.P.C. Petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 30.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/- The words and figures “respondents 2 and 3” occurring in the penultimate paragraph (page 5) and the last paragraph of the order dated 29/10/2008 in Crl.RP No.3243/2008 are corrected as “respondents 3 and 4” as per order dated 12/03/2009 in Crl.M.A. No.2540/2009. Sd/- Registrar (Judicial)