IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 3373 of 2008() ------------------------------ CRA.745/2007 of SESSIONS COURT, THIRUVANANTHAPURAM ST.2179/2005 of JUDL. FIRST CLASS MAGISTRATE COURT-III,NEDUMANGAD .................... REVN. PETITIONER(S):APPELLANT:ACCUSED ---------------------------------------------------------- SATHYAN @ HASHIM, S/O.SADANANDAN, 39/1050, PILOT NAGAR, ATTAKULANGARA, MANACAUD.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS/ COMPLAINANT & STATE ----------------------------------------------- 1. S.S.RAVIKUMAR, SREERENGOM, PACHA, PALUVALLY,KURUPUZHA VILLAGE, NEDUMANGADU. 2. STATE OF KERALA, REPRESENTED BY THE 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 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3373 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. He filed the complaint before Judicial First Class Magistrate-III, Nedumangadu alleging that petitioner borrowed Rs.41,000/- and towards its repayment issued Ext.P2 and P3 cheques drawn in his account maintained in Thiruvananthapuram branch of Union Bank of India dated 13.2.2005 for Rs.20,000/- and dated 15.6.2005 for Rs.21,000/- respectively and when the cheques were presented for encashment, under Exts.P4, the cheques were dishonoured for want of sufficient funds and first respondent sent Ext.P5 notice demanding the amount covered by dishonoured cheques and it was received by the petitioner under Ext.P7 acknowledgement card, but he failed to pay the amount and thereby committed the offence. Petitioner pleaded not guilty. Complaint was filed through the brother of first respondent under Ext.P1 power of CRRP 3373/08 2 attorney. Petitioner pleaded not guilty. Power of attorney was examined as PW1. Exts.P1 to P7 were marked. Petitioner did not adduce any evidence. His case at the time of cross- examination of PW1 and also on questioning under section 313 of Cr.P.C. was that he had no transaction with first respondent and he had borrowed Rs.10,000/- from Bhuvanachandran, a Police Constable, who is the father in law of first respondent, and at that time two cheques were handed over to Bhuvananchandran as security and misusing the cheques the complaint was filed and he did not commit any offence. 2. Learned Magistrate on appreciation of evidence found him guilty. He was convicted and sentenced to simple imprisonment for 20 days and a compensation of Rs.41,000/- and in default simple imprisonment for seven days under section 357 (3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.Appeal 745 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court and a fine of Rs.41,000/- and in default simple imprisonment for one month with a direction to pay the fine, on CRRP 3373/08 3 realisation, to first respondent as compensation under section 357(1) of Cr.P.C. Revision is filed challenging the conviction and sentence. 3. Learned counsel appearing for petitioner was heard. 4. The argument of the learned counsel is that Courts below did not properly appreciate the evidence and on the evidence found that PW1, the power of attorney holder, is incompetent to give evidence as he has no personal knowledge with regard to the transaction. It was argued that when PW1 claimed that he was present both at the time of borrowal as well as when the cheques were issued, in further cross-examination PW1 deposed that he did not remember whether the cheques were issued at the time when the amount was borrowed and therefore his version that he was present at the time of transaction should not have been believed by the Courts below. Learned counsel also argued that when according to PW1 both cheques were issued from the same cheque book, as found by learned Magistrate they relate to two different cheque books and therefore it is clear that PW1 was not present at the time when the cheques were issued and therefore there is no evidence to prove either the original transaction or the CRRP 3373/08 4 subsequent issuance of cheques especially when it is the case of the petitioner that cheques were issued not to the first respondent but to his father-in-law, who is a police constable, as security for an entirely different transaction and that too for Rs.10,000/-. 5. On hearing the learned counsel and going through the judgments of Courts below and on appreciation of the evidence of PW1 read out by the learned counsel, I cannot agree with the submission that appreciation was perverse. PW1 the power of attorney holder of first respondent deposed that he was present at the time of the original transaction. Evidence of PW1 is that he was present when the petitioner borrowed the amount from his brother, the first respondent, and he was also present at the time when the cheques were issued after making part payment later. Though in cross-examination PW1 did not properly answer to the question whether the cheques were issued at the time of borrowal, his subsequent answers make the position absolutely clear. PW1 deposed that cheques were issued at the time when part of the amount borrowed was paid and cheques were issued for the balance amount. The learned Magistrate appreciated the evidence in the proper perspective CRRP 3373/08 5 and believed the version of PW1. Learned Sessions Judge reappreciated the same and confirmed the finding. I do not find any reason to interfere with that finding especially when petitioner did not send a reply to Ext.P5 notice. As found by the Courts below, if Exts.P2 and P3 cheques were issued to the father-in-law of the first respondent and that too as security for a loan of Rs.10,000/- as claimed by the petitioner, when Ext.P5 notice was received by him demanding Rs.41,000/- covered under Ext.P2 and P3 cheques he would have definitely sent a reply disputing the liability. When the entire evidence is appreciated in the proper perspective, I do not find any reason to interfere with the finding that Ext.P2 and P3 cheques were issued towards repayment of amount due to first respondent. The fact that cheques were dishonoured for want of sufficient funds and first respondent has complied with the statutory formalities provided under sections 138 and 142 of Negotiable Instruments Act is perfectly correct. Hence the conviction of the petitioner for the offence under section 138 of N.I.Act is perfectly legal. 6. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment CRRP 3373/08 6 till rising of Court in addition to a fine for the amount covered by the dishonoured cheques with a direction to pay the same on realisation to first respondent as compensation under section 357(1) of Cr.P.C. The sentence is also reasonable. There is no reason to interfere with the sentence also. Revision is dismissed. on the submission of the learned counsel, petitioner is granted two months time to pay the fine. Petitioner is directed to appear before learned Magistrate on 23.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-