IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3944 of 2008() ------------------------------ CRA.117/2003 of ADDL.SESSIONS COURT, THALASSERY CC.259/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- O.J.KURIAKOSE, 60 YEARS, S/O.LATE JOSEPH, AGRICULTURE, OUPPANMAKKAL HOUSE, PO.UDAYAGIRI, VIA.ALAKKODE, TALIPARAMBA TALUK, KANNUR. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): RESPONDENTS/COMPLAINANT ----------------------------------------------------- 1. K.T.THOMAS, S/O.THOMAS, KATTI VEETTIL HOUSE, ALAKODE AMSOM, UDAYAGIRI, THALIPARAMBA TALUK, KANNUR, THROUGH THE P/A. JOJO JAMES, 29 YEARS. 2. STATE, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3944 OF 2008 =========================== Dated this the 4th day of December,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.259/2002 on the file of Additional Chief Judicial Magistrate, Thalassery. He was convicted for the offence under section 138 of Negotiable Instruments Act. Petitioner was challenged the conviction before Sessions Court, Thalassery in Crl.A.117/2003. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court in addition to a compensation of Rs.1,60,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner was heard. 3. Learned counsel argued that courts below did not properly appreciate the evidence and should CRRP 3944/2008 2 have accepted the evidence of DW1 and should have found that Ext.P1 cheque was not issued towards discharge of an existing liability and therefore offence under section 138 of Negotiable Instruments Act was not committed. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction or the sentence. Though petitioner raised a contention that Ext.P1 cheque was not issued towards discharge of existing liability, learned Magistrate and learned Sessions Judge elaborately considered the evidence of PW1 and DW1 and found that Ext.P1 cheque was issued towards discharge of an existing liability. As rightly found by the courts below, evidence of DW1 himself establish that there was a mediation and in that mediation it was agreed that liability of revision petitioner is Rs.1,40,000/- which is the amount covered by the dishonoured cheque. The findings of the courts below is in accordance with the evidence. There is no reason CRRP 3944/2008 3 to interfere with the conviction. Evidence establish that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and it was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all the formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court in addition to a compensation of Rs.1,60,000/-. Learned counsel argued that Ext.P1 cheque is only for Rs.1,45,000/- and therefore compensation is excessive. Ext.P1 cheque was issued on 31.3.2000. In such circumstance, compensation of Rs.1,60,000/- cannot be said to be excessive warranting interference. I find no reason to interfere with the sentence also. Revision is dismissed. Revision petitioner is CRRP 3944/2008 4 granted two months time to pay the amount. Revision petitioner is directed to appear before the Magistrate on 5.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006