IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 3224 of 2008() ------------------------------ CRA.698/2004 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.496/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVISION PETITIONER: APPELLANT:ACCUSED: ----------------------------------------------------------------------- KOMALA KUMAR, S/O KRISHNAPANICKER, JAYALAYAM,THOLOOR, ARYANAADU P.O., ARYANADU POLICE STATION, BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENTS: RESPONDENTS:COMPLAINANT: ------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. G.VIJAYAN,P.R. BHAVAN,VANDA, KARIPPUR P.O., NEDMANGAD. BY PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3224 OF 2008 =========================== Dated this the 22nd day of September,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Second respondent is the complainant. Case of the second respondent is that towards repayment of Rs.25,000/- borrowed by petitioner on 17.3.2002, he issued Ext.P1 cheque drawn on his account maintained in Dhanaleskshmi Bank, Aryanad Branch on 17.9.2002 and when the cheque was presented for encashment, it was dishonoured under Ext.P2 and second respondent sent Ext.P4 notice demanding the amount covered by the cheque in the correct address of the petitioner which was returned back as unclaimed under Ext.P5 and petitioner did not pay the amount and thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of second respondent as CRRP 3224/2008 2 PW1 and the witness as PW2 and Exts.P1 to P7 found him guilty and convicted and sentenced him to simple imprisonment for six months and a compensation of Rs.25,000/- under section 357(3) of Code of Criminal Procedure. Petitioner challenged conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.Appeal 698/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence of imprisonment till rising of the court and a fine of Rs.25,000/- which is directed to be paid to second respondent as compensation under section 357 of Code of Criminal Procedure. This petition is filed under section 397 and 401 of Cr.P.C challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner argued that courts below did not properly appreciate the evidence and based on the evidence of PW1 and PW2 conviction is not sustainable. It CRRP 3224/2008 3 was argued that in any case sentence awarded is not sustainable and even if the sentence is legal petitioner is to be granted sufficient time to pay the fine amount. 4. On hearing the learned counsel and going through the judgments of the courts below, I do not find any illegality or irregularity in the appreciation of evidence. Though Pws.1 and 2 were cross examined, learned Magistrate and learned Sessions Judge appreciated the evidence in proper perspective and found that Ext.P1 cheque was issued towards the repayment of the amount borrowed earlier. I do not find any reason to interfere with that finding of fact. The evidence establish that petitioner issued Ext.P1 cheque towards the repayment of the amount borrowed. 5.Evidence of PW1 with Ext.P2 establish that the cheque when presented for encashment was dishonoured for want of sufficient funds. This aspect was not disputed. Then the question is whether second respondent had complied with all CRRP 3224/2008 4 the statutory formalities. Ext.P4 copy of the notice with Ext.P5 the original notice establish that within the statutory period second respondent demanded the amount covered by the dishonoured cheque in the correct address of the petitioner and it was returned unclaimed. Courts below on the evidence rightly found that the notice is to be treated as refused as it was unclaimed inspite of sending it in the correct address and intimation was given by the postal authorities to the petitioner. In such circumstance conviction of the petitioner for the offence under section 138 is perfectly legal and proper. 6.Then the question is with regard to the sentence. Though learned Magistrate sentenced petitioner to simple imprisonment for six months,learned Sessions Judge modified the sentence to imprisonment till rising of the court and a fine of Rs.25,000/- and in default simple imprisonment for one month. The cheque itself is for Rs.25,000/-. In such circumstance, I do not find CRRP 3224/2008 5 any reason to interfere with the sentence also. 7. Learned counsel appearing for petitioner submitted that petitioner may be granted time to pay the fine amount. Petitioner is granted three months time to pay the fine amount. Criminal Revision Petition is dismissed, confirming the conviction and sentence. Petitioner is granted three months time to pay the fine amount. Petitioner is directed to appear before the learned Magistrate to receive the sentence on 19.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006