IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.Rev.Pet.No. 4443 of 2007() ------------------------------ CRA.490/2004 of ADDL.SESSIONS COURT (FAST TRACK-I), ALAPPUZHA CC.557/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA ................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------- SALBI ZACHARIA, AGED 36 YEARS, S/O. ZACHARIA @ KUTTAPPAN, ALATHARA, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. BY ADV. SRI.BABU S. NAIR RESPONDENT(S)/ RSPDT./LRS.OF ORIGINAL COMPLAINANT K.F.MICHEAL(DIED)/STATE ----------------------------------------------------------------- 1. LEELAMMA MICHEAL, W/O. LATE MICHEAL, KARUMANCHERRIL, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. 2. SHOBHANA MICHEAL, D/O. LATE MICHEAL, KARUMANCHERRIL, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. 3. ANNIE MERLIIN, W/O. K.M. JACOB, KARUMANCHERRIL, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. 4. ARPAN FRANCIS, S/O.K.M. JACOB, KARUMANCHERRIL, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. 5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA FOR R5 SRI.V.L.SHENOY FOR R.1 TO R4 SRI.L.JAYAWANTH FOR R.1TOR4 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON 06/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.4443 OF 2007 ------------------------------------------ Dated 6th January 2009 O R D E R Revision petitioner is accused and first respondent, the complainant in C.C.557/99 on the file of Judicial First Class Magistrate-I, Cherthala. Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. He challenged the conviction before Sessions court, Alappuzha in Crl.A.490/04. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and modified the sentence to imprisonment till rising of court and fine of Rs.1,10,000/- and in default simple imprisonment for three months. On realisation of the fine, it was directed to be paid to first respondent as compensation. Revision is filed challenging the conviction. Case of the revision petitioner is that courts below did not properly appreciate the evidence and should have found that petitioner did not borrow the amount or issued the cheque towards repayment of the amount borrowed and therefore conviction is not CRRP 4443/07 2 sustainable. It was contended that first respondent suppressed pendency of O.S.698/99 before Munsiff court, Cherthala whereunder decree of specific performance of an agreement of sale executed by the mother of the petitioner was passed in favour of first respondent and it should have been found that as stated in Ext.D2 first respondent had agreed to withdraw that case as well as this case and therefore the conviction is to be set aside. Though Ext.D2 was pressed into service by the revision petitioner before the court below, both learned Magistrate and learned Sessions Judge did not accept the same. First respondent was examined as PW1 on 8/11/2002. Ext.D1 was allegedly executed by first respondent on 10/2/2003 subsequent to his examination. First respondent did not admit execution of Ext.D2 and did not agree that he had agreed to withdraw case on receipt of Rs.50,000/- as stated therein. Therefore, based on Ext.D2 it cannot be said that conviction is not sustainable. 2. Learned Magistrate and learned Sessions Judge appreciated the evidence of first respondent as PW1 and revision petitioner as DW1 and found that evidence of PW1 that revision petitioner borrowed Rs.1,00,000/- in March 1999 and towards its repayment issued Ext.P1 cheque is CRRP 4443/07 3 credible and reliable. On going through the deposition of the witnesses, I find no reason to differ with the finding. Evidence establish that Ext.P1 cheque was issued towards repayment of the amount due. Fact that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act is not disputed. In such circumstance, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 3. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence till rising of court in addition to fine of Rs.1,10,000/- with a default sentence of simple imprisonment for three months with a direction to pay the fine on realisation to first respondent as compensation. In the nature of the case, I find no reason to interfere with the sentence also. Revision is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.