IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Crl.Rev.Pet.No. 2542 of 2008() ------------------------------ CRA.820/2006 of II ADDL.SESSIONS COURT, ERNAKULAM CC.818/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ K.C.KUNJUMON, AGED 5O YEARS S/O.CHACKO, KARUKODATH HOUSE KARUMANCHERY,EZHUMPUNNA SOUTH P.O. CHERTHALA, ALAPPUZHA DISTRICT BY ADV. SRI.B.RAJEEV KOYICKAL RESPONDENT/RESPONDENT/COMPLAINANT --------------- 1. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM 2. V.K.PRABHAKARAN, AGED 79 YEARS S/O.LATE KESAVAN, PATTATHARA HOUSE AMBALANGHI SOUTH P.O.,ERNAKULAM 07 ADV. SRI.P.GOPAKUMARAN NAIR FOR R2 SRI.C.S.DIAS FOR R2 SRI.N.K.SUBRAMANIAN FOR R2 SRI.K.JOSE KURIAKOSE FOR R2 SRI.ADEEP ANWAR FOR R2 R1 BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.2542 OF 2008 ------------------------------------------ Dated 5th February 2009 O R D E R Revision petitioner is the accused and second respondent, the complainant in C.C.818/2003 on the file of Judicial First Class Magistrate-II, Kochi. He was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before Sessions court, Ernakulam in Crl.A.820/2006. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and modified the sentence to imprisonment till rising of court and compensation of Rs.1,20,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner argued that there is no evidence to prove that Ext.P1 cheque was issued towards discharge of an existing debt or liability. It was argued that evidence of first respondent as PW1 establish that second respondent has no acquaintance with revision CRRP 2542/08 2 petitioner and he would not grant a loan as alleged and therefore the courts below should have accepted the case of revision petitioner that Ext.P1 cheque was issued to Babu as security for the loan borrowed from Babu and later repaid by the revision petitioner. It is therefore argued that the conviction is not sustainable. Learned counsel also argued that the sentence awarded is highly excessive and apart from the substantive sentence revision petitioner is sentenced to double the amount covered by the dishonoured cheque as compensation and therefore the sentence is to be reduced. 3. Though the learned counsel argued that courts below should not have accepted the evidence of PW1 and should have accepted the case of revision petitioner that Ext.P1 cheque was issued as security to Babu when the amount was borrowed from him, on going through the evidence on record, I do not find it necessary to re- appreciate the evidence to enter a different finding. Evidence of PW1 is properly appreciated by the courts below. Evidence of PW1 establishes that revision petitioner borrowed Rs.60,000/- and issued Ext.P1 cheque towards its repayment. Though it was contended CRRP 2542/08 3 that Ext.P1 cheque was issued as security to one Babu, no evidence was adduced either to prove that the cheque was issued as security to Babu or even to probablise the case. Even though PW1 was cross examined nothing was brought out to disbelieve his version that Ext.P1 cheque was issued towards repayment of loan. Therefore, I find no reason to interfere with the findings of the courts below that Ext.P1 cheque was issued by the revision petitioner, towards discharge of the amount borrowed from second respondent. It is established that the cheque 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. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act, in such circumstances is perfectly legal. 4. Then the question is regarding the sentence. Learned Magistrate awarded the sentence of simple imprisonment for one month and fine of Rs.1,20,000/- with a direction to pay Rs.90,000/- as compensation to second respondent under Section 357(1)(b) of Criminal Procedure Code. Learned Sessions Judge modified the CRRP 2542/08 4 sentence to simple imprisonment for one month and compensation of Rs.1,20,000/-. Ext.P1 cheque is only for Rs.60,000/-. Considering the entire evidence and circumstances of the case, I find no justification for the courts below to grant compensation of Rs.1,20,000/- which is double the amount covered by the dishonoured cheque, especially when second respondent had not even instituted a suit for realisation of the amount. Considering the entire facts, interest of justice will be met if the sentence is modified to imprisonment till rising of court and fine of Rs.65,000/- and in default simple imprisonment for two months. On realisation of the fine Rs.60,000/- is to be paid to second respondent as compensation under Section 357(1)(b) of Criminal Procedure Code. Revision is therefore allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.65,000/- and in default simple imprisonment for three months. On realisation of fine Rs.60,000/- to be CRRP 2542/08 5 paid to second respondent as compensation under Section 357(1)(b) of Criminal Procedure Code. Revision petitioner is granted two months time to pay the fine. Revision petitioner need only deposit the balance amount, less the amount, if any deposited before the Magistrate in this case. Revision petitioner is directed to appear before the Judicial First Class Magistrate-II, Kochi on 7/4/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.