IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 Crl.Rev.Pet.No. 1930 of 2011() ------------------------------ CRA.301/2006 of ADDITIONAL SESSIONS COURT, THALASSERY STC.394/2006 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S)/ACCUSED: ---------------------------- K.ABDUL RAHMAN,S/O.ABOOBAKCER HAJI, AGED 62 YEARS,N.R.A VILLA, MADAPEEDIKA, THALASSERY. BY ADV. SRI.P.M.HABEEB RESPONDENT(S)/COMPLAINANT: -------------------------- 1. M.P.BASHEER,S/O.MUHAMMED HAJI, AGED 48 YEARS,MUHAREK MANZIL P.O, EDAKKAD,KANNUR DISTRICT. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM -31. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1930 OF 2011 ----------------------------------- Dated this the 11th day of August, 2011 O R D E R Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. Negativing his plea of not guilty, on his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for nine months and to pay a sum of Rs.95,000/- as compensation to the complainant with default term of imprisonment for one and half months. In appeal, the learned Sessions Judge, affirming the conviction reduced the substantive term of imprisonment till the rising of the court and modified the compensation awarded limiting it to Rs.85,000/- with default term of simple imprisonment for one month. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the petitioner/accused Crl.R.P.No.1930/2011 2 questioned the appreciation of evidence by both the courts below impeaching the conclusion formed to hold the accused guilty of the offence, on the premise that the testimony of the accused, examined as DW1, was not appreciated and considered with reference to the rigour proof required from an accused to substantiate his defence. The accused need only establish the version presented by him as defence is probable satisfying the test of preponderance of probabilities, whereas, the prosecution has to prove its case with clinching and unimpeachable evidence, submits the counsel. Whereas, the evidence of the complainant examined as PW1 was accepted as gospel truth, the testimony of the accused examined as DW1 was discarded by both the courts, is the submission of the counsel. 3. Going through the judgments rendered by both the courts below, I find no merit in the challenges mooted by the counsel. Needles to point out, the conclusion arrived at by the learned Magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses while recording Crl.R.P.No.1930/2011 3 their testimony, has to be given due weightage and consideration by the superior forum in examining the disputed issue presented for adjudication. Here, in the facts of the case, the conclusion formed by the learned Magistrate after reappraisal of the evidence was found correct, and, also upheld, by the learned Sessions Judge. So far as the revisional court is concerned, it cannot interfere with the finding of fact rendered by the inferior court unless such finding is shown to be perverse or it could not have been drawn on the materials on record or it is so patently erroneous and unsustainable under law. No such case has been made out in the present case. The accused, who has set up a plea of discharge, to substantiate that plea, mounted the box and give evidence. His evidence was found not trustworthy. If it was a case of discharge, prudence demanded him to get back the cheque, which had been admittedly issued to the complainant earlier. So much so, I find no interference with the view taken by the learned Magistrate and also the learned Sessions Judge in accepting the case of the complainant and discarding the defence of the accused is called for. Conviction of the accused is Crl.R.P.No.1930/2011 4 not liable to be disturbed on the challenge raised by the counsel as aforesaid. 4. So far as the sentence imposed against the accused, having regard to the fact that as against the offender found guilty of an offence involving the dishonour of a cheque, covered under Section 138 of the N.I.Act, in the absence of exceptional circumstances justifying a prison term, incarceration of the offender for a term is not called for. That is so for the reason that the dishonour of the cheque might have arisen for reasons beyond the contemplation of the maker at the time of issuing of the cheque. True, the provisions have been incorporated in the N.I.Act to give sanctity to commercial transactions by using of cheques. But that alone cannot be the basis in the matter of punishment as against an offender on dishonour of the cheque issued by him. Taking into account those aspects, I find, the accused in the present case, as against whom no special circumstances warranting a prison term is borne out by the facts involved, need only suffer imprisonment for a day as substantive Crl.R.P.No.1930/2011 5 term of punishment. So much so, the substantive term of imprisonment imposed requires modification reducing it to imprisonment for a day, till the rising of the court retaining the compensation awarded with the default term modified by the learned Sessions Judge. 5. At this stage, the learned counsel for the petitioner requested for some more time to enable the accused to pay off the compensation and, thus, avoid the default term, submitting that he is facing severe financial difficulties now. Cheque in the present case is seen dated 07.05.2005. When that be so, further extension of time to pay the compensation, cannot be granted. However, having regard to the submissions made by the counsel, there will be a direction to the learned Magistrate to keep in abeyance the execution of the sentence against the accused for a period of two months from today to enable him to pay off the compensation within such time. Petitioner is directed to appear before the Magistrate Court on 17.10.2011 to serve out the substantive term of imprisonment for a day, till the rising of the Crl.R.P.No.1930/2011 6 court and to report the payment of the compensation. In default of his appearance and non-payment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.1930/2011 7