IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 809 of 2001() ----------------------------- CRA.95/1993 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.11/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): --------------------- M.SUNIL KUMAR, S/O.K.P.RAMANKUTTY MANIYANKADU, KIZHAKKUMCHERRY, VADAKKUMURI, VADUTHALA VILLAGE, VAIKOM TALUK. BY ADV. SRI.P.S.NANDANAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE STATE PROSECUTOR. 2. VISWANATHAN, S/O.SADASIVAN, MEKUNNATHUVEEDU, KAPPIL DESOM, EDAVA VILLAGE. PUBLIC PROSECUTOR (SRI. JAYASURYA) SRI.MATHEW JOHN (K) FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON 01/07/200 PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Crl.R.P. No.809 of 2001 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER This revision is filed by the accused who was convicted and sentenced concurrently by the trial court as well as the appellate court for offence under section 138 of the Negotiable Instruments Act (“the N.I. Act” for short). The trial court also ordered cost of Rs.750/- under Section 359 of Cr.P.C. and in default to undergo simple imprisonment for 30 days. The said conviction and sentence are challenged in this revision. 3.According to prosecution, the accused borrowed Rs.20600/- from the complainant (2nd respondent) on 9.8.1991 and issued Extd.P1 cheque for discharge of the said amount, which on presentation was dishonoured due to insufficiency of fund. A notice was issued to the accused as Ext.P3 demanding payment and though the accused received the notice he did not pay the amount. Hence, after compliance of legal formalities, a complaint was field by 2nd respondent against the accused. 4. PWs 1 to 4 were examined and Exts.P1 to P6 were [Crl.R.P.809/2001] 2 marked on the side of the prosecution. Accused did not adduce any evidence. Both the trial and appellate court found that accused had drawn the cheque Ext.P1 for discharge of the money which he borrowed from the complainant on 9.8.1991. This is revealed from the evidence of PW1 which is supported by the evidence of PW4, who is an independent witness. The trial court entered into an agreement finding that the accused had borrowed Rs.20,600/- from the complaint on 9.8.1991, as revealed from the evidence of PWs 1 and PW4. The appellate court after discussing the evidence in detail held that evidence by PWs. 1 to 4 and Exts.P1 to P6 would go to prove case of complainant. The evidence of PW1 would reveal that the amount was paid to the complainant and the cheque was also drawn by the accused. There is nothing to disbelieve the evidence of PW1 which is supported by the evidence of PW4, who is an independent witness regarding payment of amount and issuance of cheque for the discharge of the amount. 5. According to accused, the cheque was issued as security in connection with purchase of a bus belonging to accused by the complainant and the fact that there was some transaction in connection with the bus is admitted by PW1. Learned counsel for [Crl.R.P.809/2001] 3 the accused-revision petitioner argued that the case of the accused is that he had issued the cheque as security to the complainant in connection with the sale of bus belonging to him to the complainant. There was some delay in arranging the permit and hence cheque was issued as security. Therefore, the said cheque having been issued as security, offence under Section 138 of N.I. Act will not lie, is the argument. According to accused. in the questioning under Section 313 Cr.P.C., the complainant had paid Rs.10,000/- towards bus transaction and also paid the amounts which were due to KFC. Complainant had also paid Rs.90,000/- to the accused for arranging permit but there was delay from the RTO office and in connection with that he had given the cheque. When the deal was over, the complainant was bound to return the cheque but he failed to return and filed a false complaint. 6. A bare statement given by the accused while questioning under Section 313 Cr.P.C. will not be sufficient to discredit the evidence given by PWs.1 and PW4. The evidence brought out in cross-examination of PW1 regarding bus transaction was inconsistent with the defence set up by the accused. According to PW1, he was a mediator in a bus transaction. He has no case [Crl.R.P.809/2001] 4 that he purchased bus from accused. The accused having borrowed the amount and issued the cheque for discharge of the said amount, and the cheque having dishonoured for insufficiency of fund, is liable for offence under section 138 of N.I. Act. provided the complaint is filed after compliance of legal formalities contemplated by the relevant position. The prosecution has established all these facts in evidence and hence there is no reason to interfere with concurrent findings of the courts below. 7. Learned counsel for the accused argued that the bank referred to in Section 138 of the Act is the drawee bank and cited two decisions in support of his contentions [Santhosh Kumar v. Mohanan (2008 (3) KLT 461) and Ishar Alloy Steels Ltd. v. Jayaswants Neco Ltd. (2001 (2) KLT 148(SC)]. But he has nothing more to say how these decisions would help the accused to get an acquittal. He submitted that the cheque was presented in the complainant's bank at Varkala whereas accused's bank is at Vaikom and the complaint ought to have been filed in Vaikom. On the basis of these facts, I do not find any reason to interfere with the conviction. 8. Learned counsel for petitioner also argued that the sentence is excessive. The sentence simple imprisonment for 6 [Crl.R.P.809/2001] 5 months and to pay cost of Rs.750/-and in default of payment of which the accused will undergo simple imprisonment for 30 days. Learned counsel for revision petitioner submitted that the revision petitioner is prepared to compensate the de facto complainant by paying the cheque amount of Rs.20,600/-, without any delay. The trial court ordered only cost of Rs.750/- and in default to undergo simple imprisonment for 30 days. 9. On hearing both sides and considering various aspects, I find that the sentence can be modified. Hence, the conviction is confirmed, but the sentence is modified as follows: Petitioner shall undergo imprisonment till rising of the court and pay an amount of Rs.20,600/- as compensation to PW1 under Section 357(3) Cr.P.C, in default of which, he shall also undergo imprisonment for six months. The petitioner shall appear before the trial court within two months from today to serve sentence. Revision Petition is partly allowed. Sd/- K. HEMA, JUDGE. Krs. [Crl.R.P.809/2001] 6 K. HEMA, J. --------------------------------------------------- Crl.R.P. No.809 of 2001 --------------------------------------------------- Dated this the 1st day of July, 2009. ORDER