IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.Rev.Pet.No. 2528 of 2008() ------------------------------ CRA.311/2005 OF SESSIONS COURT, MANJERI CC.1/2002 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------- T.KESAVAN, TS.R.WORK SHOP, TIRUNNAVAYA JN., PO.TIRUNNAVAYA. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------- 1. V.PARAMESWARAN NAIR, “ARATHI NIVAS”, PO.THIRUVANNUR, KOZHIKODE-29. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 2528 OF 2008 =========================== Dated this the 18th day of September,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of first respondent is that petitioner borrowed Rs.60,000/- from him and towards discharge of that liability issued Ext.P1 cheque dated 23.10.2001 drawn on his account maintained in South Indian Bank, Tirunnavaya Branch and when the cheque was presented for encashment through the account of the first respondent in Pattanakkad Branch of Tirur Urban Co-operative Bank, under Exts.P2 and P3, it was dishonoured for want of sufficient funds and demanding the amount covered by Ext.P1 cheque, petitioner caused to send Ext.P4 lawyer notice which was served on the petitioner under Ext.P6 and petitioner did not pay the amount and thereby committed the offence under CRRP 2528/2008 2 section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. The defence was that petitioner was working as collecting Agent of first respondent and as security at that time a blank cheque was given to first respondent and subsequently petitioner discontinued the employment. At that time it was found that petitioner is liable to pay Rs.99,000/- and petitioner deposited that amount under Ext.D2 in the account of the petitioner and misusing the blank cheque entrusted earlier as security complaint was falsely lodged. Learned Magistrate on the evidence of PW1 and Exts.P1 to P11 on the side of the complainant, Dws.1 to 5 and Exts.D1 and D2 on the side of the petitioner found that Ext.P1 cheque was not issued as canvassed by petitioner and instead was issued by petitioner towards discharge of existing liability and it was dishonoured for want of sufficient funds and within the statutory period notice was sent and the complaint was also filed within the time. Therefore petitioner was convicted and sentenced to simple imprisonment for six months and a CRRP 2528/2008 3 compensation of Rs.50,000/- for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before the Sessions Court, Manjeri in Crl.Appeal 311/2005. Learned Sessions Judge on reappreciation of the evidence confirmed the findings of learned Magistrate and confirmed the conviction but reduced the sentence to simple imprisonment for three months. The Revision Petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The records of the courts below were called for were perused. 4. The argument of the learned counsel appearing for petitioner is that the courts below did not properly appreciate the evidence and it should have been found that Ext.P1 cheque was not issued towards discharge of any existing liability and instead was given as a blank cheque as security, when petitioner was employed under the first respondent. It was argued that evidence of first respondent as PW1 shows that one CRRP 2528/2008 4 Radhakrishnan was present at the time of original transaction and he was not examined and therefore the original transaction was not proved and there is no evidence to prove that Ext.P1 cheque was issued towards discharge of an existing liability. It was argued that evidence of DW2 corroborated by the evidence of Dws.1, 3 and 4 should have been accepted and it should have been found that Ext.P1 cheque was issued as security and that too as blank cheque and not towards the discharge of any existing liability and therefore the conviction is not sustainable. It was finally argued that in any case sentence awarded is excessive. 5. In view of the order to be passed in the revision, it is not necessary to issue notice to first respondent. 6. Though learned counsel vehemently argued that courts below did not appreciate the evidence in the proper perspective and the evidence of PW1 should not have been accepted and case of the petitioner that Ext.P1 cheque was issued as security and that too as a blank cheque should have been accepted, on going through the evidence, I CRRP 2528/2008 5 cannot agree with the submission. Eventhough Ext.P4 notice, demanding the amount covered by the dishonoured cheque, sent by first respondent was received by the petitioner under Ext.P6, he did not sent a reply. When examined as DW2 case of the petitioner was that he entrusted Ext.P4 notice with his counsel with instructions to send a reply and his counsel sent a reply and that reply was read over to him, nothing was produced to prove it. It is therefore clear that petitioner is not telling the truth. 7. Similarly what was contended by petitioner was that Ext.D2 receipt was obtained while depositing Rs.99,000/- which was found to be due at the time of termination of the service of the petitioner under the first respondent. Case of the first respondent was that petitioner was a confident of first respondent and the amount was deposited through the petitioner and receipt was kept by petitioner. When examined as DW2 petitioner admitted that he was a confident of first respondent and Ext.D2 receipt was obtained by him after depositing the amount entrusted to him by CRRP 2528/2008 6 first respondent. Therefore case of the petitioner that Rs.99,000/- was found due and it was deposited by him in the account of the petitioner can only be rejected. 8. If in fact petitioner had given a blank cheque as security at the time of his employment and thereafter the employment was terminated and it was found that he is liable to pay Rs.99,000/- and it was deposited evidenced by Ext.D2 as canvassed by the petitioner, in the normal human behaviour, petitioner would have insisted for return of the blank cheque before the amount is deposited. Even if the version of PW1 that when cheque was demanded it was disclosed that the cheque is at the house of first respondent at Kozhikode, petitioner would have definitely sent a notice on the next day or in any event without further delay demanding back the blank cheque. Petitioner did not take any such action. Inspite of Ext.P4 notice demanding the amount covered by the cheque, petitioner did not sent any reply stating that the cheque was not issued towards the discharge of existing liability and was entrusted as security and is liable to be CRRP 2528/2008 7 returned as the entire amount was paid. In these circumstances, I cannot agree with the argument of the learned counsel appearing for petitioner that appreciation of evidence by the courts below was not proper. Learned Magistrate and learned Sessions Judge believed the evidence of PW1 and found that Ext.P1 cheque was issued towards discharge of existing liability. There is no reason to interfere with the said finding of fact. As first respondent has complied with all statutory formalities and Ext.P1 cheque was proved to be dishonoured for want of sufficient funds, conviction of petitioner for the offence under section 138 of N.I. Act is perfectly legal and warrants no interference. 9. Then the only question is with regard to the sentence. Ext.P1 cheque is for Rs.50,000/-. Learned Sessions Judge modified the sentence to simple imprisonment for three months in addition to compensation of Rs.50,000/-. Interest of justice will be met if the sentence is modified to a fine of Rs.55,000/- with a default sentence of simple imprisonment for three months. On realisation of CRRP 2528/2008 8 the fine amount, Rs.52,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision is allowed in part. While confirming the conviction for the offence under section 138 of Negotiable Instruments Act, the sentence is modified to a fine of Rs.55,000/- and in default simple imprisonment for three months. On depositing the fine amount Rs.52,000/- is to be paid to first respondent. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006