IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3501 of 2008() ------------------------------ CRA.396/2006 of ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE ST.99/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- M. ALIKUTTY, S/O.KUNHAMMUTTY, ERAKKOT HOUSE, P.O PANIKKOTTUMPADI, MALAPPURAM DISTRICT. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT.TULASI PANICKER RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------------------- 1. N.V.THULASEEDHARAN, S/O.LATE MURALEEDHARAN, KEYATH HOUSE, P.O.KALLAI, CALICUT - 3. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3501 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the accused and first respondent the son of the complainant in S.T.99 of 2002 on the file of Judicial First Class Magistrate-I, Kozhikode. Case of first respondent was that on 15.2.2000 petitioner borrowed Rs.75,000/- promising to pay the same within one month and after paying Rs.35,000/- in cash, towards repayment of Rs.40,000/- issued Ext.P1cheque drawn in his account maintained in Chettippady Branch of State Bank of Travancore and when it was presented for encashment, under Ext.P2 it was dishonoured for want of sufficient funds. First respondent sent Ext.P4 notice demanding the amount. Instead of paying the amount petitioner sent Ext.P9 reply and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Complainant was examined as PW1 and Exts.P1 to P3 were marked. Petitioner was examined as DW2 and Manager of the Bank was examined as DW1. Ext.D1 was marked. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a CRRP 3501/08 2 compensation of Rs.85,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.Appeal 396 of 2006. Learned Sessions judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. As the complainant died, when the case was pending before learned Magistrate, first respondent was impleaded as his legal heir. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that Courts below did not take into consideration the case of the petitioner that there was material alteration in Ext.P1 cheque and therefore the conviction is not sustainable. Relying on the evidence of DW1, the Manager of the Bank, learned counsel argued that there is apparent difference in the signature of the petitioner and the signature purported to be that of the petitioner in Ext.P1 and therefore petitioner cannot be convicted for the offence under section 138 of N.I.Act. Learned counsel also argued that in any case the sentence awarded is excessive and petitioner may be granted time to pay the amount covered by the dishonoured cheque. 4. Ext.P9 is the reply sent by the petitioner to deceased complainant in answer to Ext.P4 notice sent by him demanding CRRP 3501/08 3 the amount covered by Ext.P1 cheque. A reading of Ext.P9 establish that petitioner had no case at that time that Ext.P1 was not issued by him. On the other hand there is an admission that he issued Ext.P1. Therefore based on the opinion of DW1, it is not possible to hold that Ext.P1 cheque was not issued by the petitioner or that there is material alteration in Ext.P1. Argument of the learned counsel is that DW1 deposed that there is apparent difference in the signature of the petitioner and the signature seen in Ext.P1 cheque when compared to the signature seen in Ext.D1 and so it is to be found that there is material alteration. Evidence of DW1 makes it absolutely clear that his version about difference in signature is only his personal opinion. DW1 has no case that he is an expert in comparison of signatures. He is not the Manager who dishonoured Ext.P1 cheque under Ext.P2. DW1 deposed that there is a circular by the Bank to compare the signature with the specimen signature of the drawer before passing a cheque and even if there is sufficient money in the account of the account holder, if the cheque was presented for encashment with difference in signature, the cheque cannot be honoured. If that be the case and the signature seen in Ext.P1 is different from the signature seen in Ext.D1, as the cheque could be passed only after comparing the signatures, it is to be presumed that signature in CRRP 3501/08 4 Ext.P1 was compared with the signature given in the specimen form and the Manager or the clerk at that time did not find any apparent difference in the signature as deposed by DW1. It is more so because even petitioner has no such case when Ext.P9 reply was sent. In such circumstances I cannot agree with the submission of the learned counsel that there is material alteration in Ext.P1 cheque, which was omitted to be taken note of by the Courts below. Evidence establish that Ext.P1 was issued towards repayment of the amount borrowed and when it was presented for encashment it was dishonoured for want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under sections 138 and 142 of N.I. Act. Hence conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the question is whether the sentence is reasonable. Learned Magistrate sentenced petitioner to simple imprisonment for three months in addition to compensation of the amount covered by the dishonoured cheque. Learned Sessions Judge confirmed the same. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to him. Considering the nature of the offence and circumstances of the case, interest of justice CRRP 3501/08 5 will be met if the sentence is modified to imprisonment till rising of Court and a fine of Rs.86,000/- and in default simple imprisonment for two months. On realisation of fine Rs.85,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. Sentence is modified to imprisonment till rising of Court and a fine of Rs.86,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.85,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before Judicial First Class Magistrate, Kozhikode on the expiry of three months from today. If petitioner has deposited any amount pursuant to the conviction or judgment passed by the appellate Court, he need only deposit the balance. M. SASIDHARAN NAMBIAR, JUDGE Okb/-