IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 3486 OF 2005() ------------------------------ CRA.679/2004 OF ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.15/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------- JAMES JOSEPH, VEZHAMPASSERIL HOUSE, PANAMATTOM, FOURTH MILE, KOORALI.P.O, ELAMGULAM VILLAGE. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT AND STATE: ------------------ 1. P.K.RAVINDRAN NAIR, PARIYARATHU HOUSE, CHIRAKKADAVU CENTRE.P.O, KANJIRAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.MINI ELIZABETH GEORGE FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3486 OF 2005 ------------------------------------------ Dated this the 22nd day of September, 2008 O R D E R Petitioner is the accused and first respondent the complainant. Case of the first respondent is that towards repayment of Rs.30,000/- borrowed by the petitioner, he issued Ext.P1 cheque drawn in his account maintained in Ponkunnam branch of Kottayam District Co-operative Bank on 20.7.2002 and when the cheque was presented for encashment, under Ext.P2 it was dishonoured for want of sufficient funds and on getting the said information, first respondent sent Ext.P4 notice demanding the amount covered by Ext.P1 cheque, which was served on the petitioner under Ext.P6 postal acknowledgement card and petitioner did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. 2. On the evidence of first respondent as PW1 and Exts.P1 to P7, learned Magistrate found petitioner guilty and convicted and sentenced him to simple imprisonment for six months and a fine of Rs.5,000/- and in default, simple imprisonment for three months. Petitioner challenged the CRRP3486/05 2 conviction and sentence before Sessions Court, Kottayam in Criminal Appeal 679 of 2004. Learned Sessions Judge on re- appreciation of the evidence confirmed the conviction, but modified the sentence to imprisonment till rising of the Court and a compensation of Rs.30,000/-. This petition is filed under Section 397 and 401 of Code of Criminal Procedure challenging the conviction and sentence. Though, on admitting the revision, petitioner was directed to deposit Rs.10,000/- and also to execute a bond before the learned Magistrate, he did not execute the bond or deposited the amount, though he has now filed an application to extend the period. 3. Learned counsel appearing for petitioner and first respondent were heard. 4. Though learned counsel appearing for petitioner vehemently argued that Ext.P1 cheque was not issued towards discharge of an existing liability and therefore the conviction is not sustainable, learned Magistrate as well as learned Sessions Judge appreciating the evidence of PW1 rendered a factual finding that Rs.30,000/- was borrowed by the petitioner and towards its repayment Ext.P1 cheque was issued. I do not find any reason to interfere with that factual finding which is in accordance with the evidence. Evidence also establishes that CRRP3486/05 3 Ext.P1 cheque was presented for encashment within the period and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. Therefore conviction of petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal and correct. 5. Then the only question is with regard to the sentence. Though learned Magistrate awarded a sentence of simple imprisonment for six months, learned Sessions Judge reduced it to imprisonment till rising of Court, in addition to compensation of Rs.30,000/-. Compensation of Rs.30,000/- is for the amount covered under Ext.P1 cheque. In such circumstances, I do not find any reason to interfere with the sentence also. Learned counsel then submitted that petitioner may be granted two months time to pay the compensation amount. In the circumstances of the case, petitioner is granted two months time to appear before learned Magistrate and pay the compensation. Petitioner is directed to appear before the learned Magistrate on 25.11.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-