IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 2429 of 2008() ----------------------------------------- CRA.598/2004 OF ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.162/2003 OF JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARY .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- PURUSHOTHAMAN VASU, S/O. VASU, THUNDIYIL HOUSE, KUNNANKARY, P.O.KIDANGARA, KUTTANAD TALUK, ALAPPUZHA. BY ADV. SRI.M.ESAKKI ACHARI RESPONDENTS/RESPONDTNS/COMPLAINANT/STATE ----------------------------------------------------------------------------- 1. JOSEPH JOHN, THOPPIL HOUSE, PERUNNAI, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 ADV. SRI.T.G.RAJENDRAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2429 OF 2008 =========================== Dated this the 28th day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in C.C.162/2003 on the file of Judicial First Class Magistrate, Ramankary. Case of first respondent in the complaint was that petitioner borrowed Rs.3 lakhs and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Veliyanadu Branch of Federal Bank. When the cheque was presented, it was dishonoured for want of sufficient funds under Ext.P2. Ext.P3 notice was sent demanding the amount covered by Ext.P1. It was received by the petitioner under Ext.P5. He did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P5 were marked. On the side of the petitioner he was examined as DW1 and Exts.D1 to D4 CRRP 2429/2008 2 were marked. On the evidence learned Magistrate found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.3,05,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.598/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that Ext.P1 cheque was not issued towards repayment of any legally recoverable debt and courts below did not properly appreciate the evidence and it should have been found that Ext.P1 cheque was issued as a blank cheque towards the amount payable by Aisha, sister of the petitioner to first respondent only as security and subsequently that amount was repaid CRRP 2429/2008 3 by the sister and hence the conviction and sentence is not sustainable. Learned counsel argued that at any rate, the sentence awarded is excessive. 4. Ext.P3 notice was sent when Ext.P1 cheque was dishonoured for want of sufficient funds demanding the amount covered by the cheque. Eventhough Ext.P3 notice was received by the petitioner, he did not sent any reply. If Ext.P1 cheque was issued as a blank cheque as canvassed by the petitioner and Rs.3 lakhs is demanded under that cheque in the ordinary human conduct, reply denying the demand would have been sent. But no reply was sent. It is not the reaction expected of a prudent man if the story is correct. When PW1 was examined he deposed that petitioner had borrowed Rs.3 lakhs and towards its repayment Ext.P1 cheque was issued. When Ext.PW1 was cross examined, case of the petitioner was that sister of the petitioner had purchased gold ornaments from the jewellery shop of the petitioner and made part payment and towards the balance as insisted by CRRP 2429/2008 4 first respondent five blank signed cheques were given and Ext.P1 is one of the said cheques. When petitioner was questioned under section 313 of Code of Criminal Procedure, his case was that gold ornaments were purchased in the name of Mani and only part payment was made and as security for balance payment PW1 demanded cheques and Ext.P1 was issued and subsequently Mani and sister of petitioner paid the amount. But when petitioner was examined as DW1 he set up a different story that gold ornaments were purchased by his sister and PW1 wanted documents as security and therefore signed stamped papers were given and as demanded blank cheque leaves of petitioner were also given. The case alleged at the time of questioning under section 313 of Code of Criminal Procedure, and that too by a written statement was not persued at the time of his examination. On appreciating the entire evidence including that of PW1 and the contradictory defence version, I find no reason to differ with the appreciation of evidence by the CRRP 2429/2008 5 courts below. Evidence establish that Ext.P1 cheque was issued towards repayment of legally recoverable debt, which was borrowed by the petitioner earlier. Evidence also establish that the cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instrument Act is perfectly legal. 5. Then the only question is with regard to the sentence. Though courts below sentenced petitioner to simple imprisonment for six months apart from a compensation, interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a fine. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.3,05,000/- and in default simple imprisonment CRRP 2429/2008 6 for three months. On realisation of the fine, it is to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before Judicial First Class Magistrate, Ramankary on 17.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006