IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.Rev.Pet.No. 3039 OF 2008() ------------------------------ CRA.520/2007 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N.PARAVUR CC.1625/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------- E.M.ABDUL KAREEM, AGED 45 YEARS, ELAPPUNGAL HOUSE, KALLAR P.O., THOOKKUPALAM, UDUMPANCHOLA TALUK. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------------------- 1. ALI K.ELAMANA, ELAMANA HOUSE, KOTTAI, PUTHUVASSERY, CHENGAMANADU. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3039 OF 2008 ------------------------------------------ Dated this the 17th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.1625 of 2001 on the file of Judicial First Class Magistrate-I, Aluva. Petitioner was convicted for the offence under section 138 of Negotiable Instruments Act and sentenced to simple imprisonment for one year and a compensation of Rs.2,25,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, North Paravur in Crl.Appeal 520/07. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence by reducing the substantive sentence to simple imprisonment for six months and compensation of Rs.2,25,000/- and in default simple imprisonment for three months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel is that Courts CRRP 3039/08 2 below did not properly appreciate the evidence and fact that petitioner had by mistake admitted issuance of the cheque in Ext.P6 reply notice should not have been taken as a ground to disbelieve the defence case. It was argued that it was the consistent case of the revision petitioner that he has no transaction with first respondent and had only transaction with his brother-in-law, who was examined as DW1 and in that transaction a blank cheque was given by the revision petitioner to DW1, which was misused by first respondent as Ext.P1. It was argued that though DW1 turned hostile to the defence, his evidence establish that there was transaction between the revision petitioner and DW1 and for non payment of the amount due to DW1, he lodged a complaint before the Dy.S.P. and there was settlement of that dispute and a sale deed was executed by revision petitioner in favour of DW1 in respect of 50 cents of property and though at that time DW1 promised to return the blank cheque, it was not returned and evidence of DW4 the A.S.I. prove that Ext.D4 complaint was filed by DW1 and it establish that Ext.P1 cheque was issued by revision petitioner as a blank cheque to DW1 and Courts below were not justified in convicting the petitioner. It was argued that the case of PW1 CRRP 3039/08 3 that without any record evidencing payment, revision petitioner borrowed Rs.2,25,000/- should not have been believed by the Courts below and therefore the conviction is to be set aside. 4. On hearing the learned counsel and on going through the judgments of Courts below I do not find any reason to interfere with the factual findings of the Courts below. Though learned counsel argued that the accused cannot be tied down to the plea raised in the written statement and as against the contentions raised in the reply notice, accused is entitled to take up any defence, the question is whether the defence so raised by revision petitioner is believable or reliable in the light of the admission made in Ext.P6. Like any other admission, an accused who made the admission is entitled to explain the admission and establish that the admission was made by mistake. An opportunity was available to the revision petitioner when examined to explain how he made an admission in Ext.P6 reply notice that he had issued a cheque in favour of first respondent, when the amount covered by Ext.P1 cheque was demanded after its dishonour by first respondent through a registered notice. In unambiguous terms, revision petitioner admitted in the reply notice that there was transaction between him and first CRRP 3039/08 4 respondent and he had issued the cheque which was the cheque referred to in the notice issued by first respondent. When petitioner was asked whether he has any explanation to offer with regard to the admission, he deposed that he has nothing to offer. Therefore I cannot agree with the submission of the learned counsel that the admission in Ext.P6 that there was transaction and cheque was issued to first respondent was a mistaken admission or that revision petitioner while instructing his counsel to send the reply was under a belief that notice was in respect of the transaction with DW1 or the blank cheque allegedly issued in favour of DW1. Though reliance was placed on Ext.D4 complaint, DW4, the A.S.I. could not explain the difference in handwriting with regard to the disputed recitals about the cheque in Ext.D4. As rightly found by Courts below no reliance can be placed on Ext.D4. When the learned Magistrate after proper appreciation of evidence found the evidence of DW1 credible and reliable and disbelieved the defence case, learned Sessions Judge on reappreciation of evidence confirmed the said findings. Though learned counsel appearing for petitioner persuaded me to hold that appreciation of evidence was not proper, on going through the depositions made available by the CRRP 3039/08 5 learned counsel, it cannot be said that appreciation of evidence was perverse. It cannot also be said that the view taken by the learned Magistrate and the learned Sessions Judge was not a possible or reasonable view that could be taken on appreciation of evidence. In such circumstances I do not find any reason to interfere with the findings of the Courts below that Ext.P1 cheque was issued towards repayment of a legally recoverable debt. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the question is regarding the sentence. Ext.P1 cheque is for Rs.2,25,000/-. Considering the nature of the offence, interest of justice will be met if the sentence is modified to imprisonment till rising of Court, in addition to fine with a direction to pay the fine on realisation to first respondent as compensation. So long as the sentence is not varied or modified as against the interest of first respondent, it is not necessary to issue notice to first respondent. Revision is allowed in part. Conviction of the petitioner for CRRP 3039/08 6 the offence under section 138 of Negotiable instruments Act is confirmed. Sentence is modified to imprisonment till rising of Court and a fine of Rs.2,25,000/- and in default simple imprisonment for three months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is directed to appear before the Magistrate on 29.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-