IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 880 of 2007() ----------------------------- CRA.596/2005 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CC.1490/2003 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------- V.M. MOHAMMED KHAN, VAYALANGAD, MATHACKAL, ERATTUPETTA-686 121. BY ADV. SRI.K.G.ANIL BABU SRI.CYRIAC KURIAN RESPONDENT(S): STATE/COMPLAINANT: --------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.A. JOSEPH, NJALLAMPUZHA, MAPPILAPARAMBIL, KURAVILANGADU. BY ADV. SRI.RAJESH THOMAS FOR R2 BY ADV. SRI.K.P.SHAHUL HAMEED FOR R2 BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 880 OF 2007 =========================== Dated this the 30th day of October,2008 ORDER Petitioner is the accused and second respondent the complainant in C.C.1490/2003 on the file of Judicial First Class Magistrate II, Kottayam. Second respondent lodged the complaint contending that petitioner issued Ext.P1 cheque drawn in his account maintained in Erattupetta Branch of Malabar Gramin Bank for Rs.2,45,000/- dated 5.5.2003 towards the repayment of the amount due and when it was presented for encashment through the account of the second respondent in Kottayam Branch of Federal Bank, under Ext.P2 it was dishonoured and inspite of Ext.P4 notice demanding the amount covered under Ext.P1, received by the petitioner under Ext.P6, he did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Second respondent was examined as PW1 CRRP880/2007 2 and Exts.P1 to P6 were marked on his side. On the side of the petitioner Exts.D1 to D4 were marked. No witness was examined including the petitioner. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one month and a compensation of Rs.2,45,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.596/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for petitioner and second respondent were heard. 3. Learned counsel argued that courts below did not properly appreciate the evidence and it should have been found that Ext.P1 cheque was not issued towards repayment of any amount but was issued as a blank cheque in 1998 evidenced by CRRP880/2007 3 Ext.D1 and therefore conviction and sentence is not sustainable. 4. Learned counsel for second respondent pointed out that North Malabar Gramin Bank establishing that Irattupetta Branch of the North Malabar Gramin Bank was opened only on 26.3.2002 and therfore the case of the petitioner that Ext.P1 cheque was issued in 1998 cannot be accepted at all and though a document was produced to prove it before the Magistrate it was not marked or relied on. Second respondent filed Crl.M.Appl.10771/2008 to receive a communication from the Manager of the North Malabar Gramin Bank disclosing that Irrattupetta Branch was opened only on 26.3.2002. When the revision was heard on 7.10.2008 and the fact that Irrattupetta Branch of North Malabar Gramin Bank was opened only in 2002, revision was adjourned at the request of the learned counsel appearing for the petitioner to find out whether Irrattupetta Branch of the Bank was opened only in 2002. It is thereafter second respondent produced CRRP880/2007 4 C.M.Appl.10771/2008. From the communication received by second respondent from the Manager of the Irrattupetta Branch of North Malabar Gramin Bank, it is absolutely clear that the said Branch of the Bank was opened on 26.3.2002. Therefore Ext.P1 cheque could not have been issued prior to 26.3.2002 much less in 1998 as canvassed by the petitioner. Learned Magistrate and learned Sessions Judge rightly appreciated the evidence and found that Ext.P1 cheque was issued towards repayment of the amount due and was not issued as a blank cheque in 1998 as canvassed by the petitioner. It is proved that Ext.P1 cheque was dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is with regard to the sentence. The courts below sentenced CRRP880/2007 5 petitioner to simple imprisonment for one month in addition to a compensation of Rs.2,45,000/-. Learned counsel for the petitioner submitted that considering the nature of the offence the sentence is harsh and it may be modified and petitioner may be granted time to pay the fine. Interest of justice will be met if the sentence is modified. Petitioner is sentenced to imprisonment till rising of the court and a fine of Rs.2,50,000/- and in default simple imprisonment for two months. On realisation of the fine, Rs.2,45,000/- to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the learned Magistrate on 31.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006