IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Crl.Rev.Pet.No. 1315 of 2003() ------------------------------ CRA.6/2001 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.1102/1997 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- VIJAYAKRISHNAN, 2/61 C., MIDHILA, P.O.KARAPARAMBA, KOZHIKODE BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): STATE AND RESPONDENT/COMPLAINANT ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUNY P.P. S/O. PAILY PUTHUPARAMBIL, THIRUVAMBADY. R1 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR ADV. SRI.JACOB ABRAHAM FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1315 OF 2003 --------------------------------------------- Dated 15th July, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-IV, Kozhikode in C.C.1102/1997. Second respondent is the complainant. His case in the complaint was that petitioner issued Ext.P1 cheque for Rs.50,000/- on 15/2/1997 drawn in his account maintained in Negungadi bank, towards repayment of the amount received by the petitioner for obtaining visa from Pws.1 and 2 and when the cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds and though the amount CRRP 1315/03 2 covered by the dishonoured cheque was demanded under Ext.P3 notice, served on the petitioner under Ext.P5, petitioner did not pay the amount and thereby committed the offence. Though complaint was originally filed along with PW3 Manoj, subsequently PW2 was deleted from the array of the complaint and was later examined as PW2. Petitioner pleaded not guilty. 2. Learned Magistrate on the evidence of Pws.1 to 3 and Exts.P1 to P6 found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.70,000/- to Pws.1 and 2 jointly. Petitioner challenged the conviction and sentence before Sessions court, Kozhikode in Crl.A.6/2001. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence. It is CRRP 1315/03 3 challenged in the revision. 3. Learned counsel appearing for the revision petitioner and second respondent were heard. 4. Facts that Ext.P1 cheque was issued in the account maintained by the petitioner, it was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act are not in dispute. The only contention raised by the petitioner before the trial court was that Ext.P1 cheque was issued not towards discharge of any debt or liability, but only as security and in any case, the consideration alleged is against public policy and therefore, petitioner cannot be prosecuted. 5. Argument of the learned counsel is CRRP 1315/03 4 that Ext.P1 cheque was issued only as security and in any case, when according to second respondent it was issued towards return of the amount received for providing visa and that is against public policy and therefore, no offence is attracted. As rightly found by the courts below evidence of Pws.1 and 2 establish that petitioner received Rs.35,000/- each from second respondent and PW3 promising to arrange visa to Saudi Arabia. When visa could not be arranged and the money was demanded back, petitioner paid Rs.10,000/- to second respondent and Rs.24,000/- to PW3. For the balance payable to Pws.1 and 2, he issued Ext.P1 combined cheque towards the return of the balance. In such circumstances, petitioner is not entitled to contend that Ext.P1 cheque was issued as security or that it is not CRRP 1315/03 5 enforceable. It was issued to discharge the liability. Even if the amount was paid by Pws.1 and 2 for arranging visa and for procuring visa, petitioner is not entitled to collect any amount and Pws.1 and 2 are not liable to pay any amount, petitioner is not entitled to retain the amount which he had received from second respondent. In such circumstances, findings of the courts below that Ext.P1 cheque was issued towards discharge of the existing liability is perfectly correct and warrants no interference Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is therefore confirmed. 6. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.50,000/- It was issued on 15/2/1997. Learned Magistrate awarded a compensation of Rs.70,000/-, in CRRP 1315/03 6 addition to a substantive sentence of simple imprisonment for six months. There is force in the submission of the learned counsel appearing for the petitioner that the sentence awarded is excessive. There is no justification for the learned Magistrate to award a compensation of Rs.70,000/- for a cheque for Rs.50,000/-, even if it is taken that cheque was issued in 1997. Interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a compensation of Rs.60,000/- payable to Pws.1 and 2 and in default simple imprisonment for three months. Revision is allowed in part. Conviction 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, CRRP 1315/03 7 petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.60,000/- (Rupees Sixty thousand only) payable to Pws.1 and 2 and in default simple imprisonment for three months. Petitioner is also permitted to pay the amount directly to Pws.1 and 2 and produce the receipt before the learned Magistrate and satisfy that compensation has been paid. Petitioner is directed to appear before the learned Magistrate on 18/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.