IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 322 of 2004()
1. KRISHNANKUTY S/O. CHELLAN, RESIDING AT
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. ABDUL MAJEED S/O. UMMER, RESIDING AT
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/08/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.322 OF 2004
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Dated 12th August, 2010
O R D E R
Petitioner, the accused in
S.T.2547/1997 on the file of Judicial First
Class Magistrate, Pattambi filed this
revision challenging his conviction and
sentence for the offence under Section 138
of Negotiable Instruments Act. Second
respondent lodged the complaint, taken
cognizance by the learned Magistrate
contending that petitioner borrowed
Rs.40,000/- and issued Ext.P1 cheque dated
7/4/1997 drawn in his account maintained in
Palakkad District Treasury and when the
cheque was presented for encashment, it was
dishonoured for want of sufficient funds
and second respondent sent Ext.P4 notice
CRRP 322/04 2
demanding the amount covered by the dishonoured
cheque which was received by the petitioner
under Ext.P3 acknowledgment and petitioner
failed to pay the amount and thereby committed
the offence under Section 138 of Negotiable
Instruments Act.
2. On appearance petitioner pleaded not
guilty. Second respondent was examined as PW1.
Ext.P1 to P5 were marked. Petitioner was
examined as DW1 and Exts.D1 and D2 were marked.
Learned Magistrate on the evidence found that
petitioner borrowed Rs.40,000/- from second
respondent and issued Ext.P1 cheque towards its
repayment and Ext.P1 was dishonoured for want
of sufficient funds and second respondent had
complied with all statutory formalities.
Petitioner was convicted and sentenced to
simple imprisonment for three months and
compensation of Rs.40,000/- without default
CRRP 322/04 3
sentence. Petitioner challenged the conviction
and sentence before Sessions Court, Palakkad in
Crl.A.204/2001. Learned Sessions Judge on re-
appreciation of evidence confirmed the
conviction and sentence and dismissed the
appeal. It is challenged in the revision.
3. Learned counsel appearing for the
petitioner was heard.
4. Argument of the learned counsel
is that courts below did not properly
appreciate the evidence and on the evidence the
conviction is not sustainable. Learned
counsel submitted that in any case, sentence
may be modified and petitioner is prepared to
pay the compensation.
5. Evidence of PW1 accepted by the
learned Magistrate establish that petitioner
borrowed Rs.40,000/- and issued Ext.P1 cheque
towards its repayment. Suggestion made by the
CRRP 322/04 4
petitioner when PW1 was cross examined was that
he had borrowed Rs.10,000/- from one Muhammed
and issued a blank cheque and it was misused by
the second respondent and he did not borrow any
amount from the second respondent. But when
petitioner was examined as DW1, his case was
that he borrowed Rs.10,000/- from Muhammed and
issued a cheque for that amount based on which
Muhammed instituted proceedings which had
finally settled between the parties. It is his
evidence that subsequently through a broker
petitioner entrusted a blank cheque, which was
misused by the second respondent. First of all,
such a case was not put to PW1 and was put
forth for the first time when petitioner was
examined. The alleged broker was not examined.
On the other hand, suggestion made to PW1 that
he issued a blank cheque to Muhammed which was
misused by the second respondent was proved to
CRRP 322/04 5
be false by evidence of DW1 himself. In such
circumstances, learned Magistrate and learned
Sessions Judge was perfectly correct in
accepting the evidence of PW1, holding that
petitioner borrowed Rs.40,000/- and issued
Ext.P1 cheque towards its repayment. Evidence
of PW1 established that when the amount was
borrowed, on the request of the petitioner
second respondent filled up the cheque and
thereafter petitioner signed the cheque and
handed it over to the second respondent. It is
established that Ext.P1 cheque was issued
towards discharge of the liability.
6. Though petitioner also raised a
contention that he did not receive the
statutory notice, DW1 admitted that address of
the petitioner shown in Ext.P4 notice is the
correct address. Ext.P3 postal acknowledgment
card establishes that Ext.P4 notice which was
CRRP 322/04 6
sent by registered post, was served on the
addressee. Though petitioner raised a
contention that signature seen in the postal
acknowledgment card is not his address, he did
not examine the postman and did not adduce any
evidence, except his interested version. Though
Ext.D1 attendance register show that he had
attended all the working days in that month,
where he is working as a Peon, it does not
establish that petitioner did not receive
Ext.P4 notice. Learned Magistrate and
learned Sessions Judge was perfectly justified
in finding that second respondent had complied
with all the statutory formalities including
demanding the amount covered by the dishonoured
cheque in writing. Conviction of the petitioner
for the offence under Section 138 of
Negotiable Instruments Act is perfectly legal.
7. Then the only question is regarding
CRRP 322/04 7
the sentence. Considering the entire facts and
circumstances of the case, interest of justice
will be met, if sentence is modified to
imprisonment till rising of court and adequate
compensation.
Revision is allowed in part. Conviction
of the petitioner for the offence under Section
138 of Negotiable Instruments Act is
confirmed. Sentence is modified. In
supersession of the sentence awarded by the
learned Magistrate and confirmed by the learned
Sessions Judge, petitioner is sentenced to
imprisonment till rising of court and
compensation of Rs.50,000/- (Rupees Fifty
Thousand only) and in default simple
imprisonment for one month. Petitioner is
permitted to deposit/pay the amount directly to
the second respondent and establish before the
learned Magistrate that he had paid the
CRRP 322/04 8
compensation. If petitioner has deposited any
amount before the learned Magistrate pursuant
to the direction given by this court while
suspending the sentence, petitioner need
deposit/pay the only balance amount and the
amount in deposit shall be paid to the second
respondent. Petitioner is directed to appear
before the Judicial First Class Magistrate,
Pattambi on 7/9/2010.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.