IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3243 of 2008()
1. RADHAKRISHNAN, S/O.NANAPPAN, 47 YEARS
... Petitioner
Vs
1. RUSTON, S/O.BHASKARAN
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
3. KANAKA RUSTON,
4. PRAJESH, S/O.RUSTON,
For Petitioner :SRI.KKM.SHERIF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3243 OF 2008
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Dated this the 29th day of October, 2008
O R D E R
Petitioner is the accused and respondents 3 and 4 are the
legal heirs of the original complainant who were impleaded in
the appeal, on the death of the complainant, in C.C. 1386 of
2002 on the file of Judicial First Class Magistrate, North Parur.
Husband of second respondent lodged the complaint contending
that petitioner borrowed Rs.1,50,000/- on 11.8.2002 and towards
its repayment issued Ext.P1 postdated cheque dated 11.9.2002
drawn in his account maintained in Thripunithura branch of the
Catholic Syrian Bank and when the cheque was presented for
encashment, it was dishonoured for want of sufficient funds. In
spite of notice demanding the amount covered by the
dishonoured cheque, petitioner did not pay the amount and
instead sent Ext.P8 reply disputing the liability and thereby
committed the offence. Learned Magistrate took cognizance of
the offence. Petitioner appeared and pleaded not guilty. First
respondent was examined as PW1. Exts.P1 to P8 were marked.
Petitioner did not adduce any evidence. He was also not
CRRP 3243/08 2
examined. Learned Magistrate on the evidence disbelieved the
defence case that Ext.P1 cheque was issued as a blank cheque
as security to the loan obtained by petitioner from the sister of
first respondent as canvassed by the petitioner and accepted the
case of first respondent that it was issued towards repayment of
the loan obtained. Petitioner was convicted and sentenced to
simple imprisonment for one year and a compensation of
Rs.1,50,000/- and in default simple imprisonment for six months.
Petitioner challenged the conviction and sentence before
Sessions Court, Ernakulam in Crl. Appeal 786 of 2006. learned
Sessions Judge on reappreciation of evidence confirmed the
conviction but reduced the sentence to simple imprisonment for
six months, retaining the compensation. Revision is filed
challenging the conviction and sentence.
2. Learned counsel appearing for petitioner was heard.
3. The argument of the learned counsel is that by cross-
examining PW1, the first respondent, petitioner has probablised
the defence case and in the absence of any other evidence to
prove that petitioner had borrowed Rs.1,50,000/- and issued
Ext.P1 cheque towards its repayment, Courts below were not
justified in convicting the petitioner.
CRRP 3243/08 3
4. Case of the first respondent was that petitioner
borrowed Rs.1,50,000/- on 11.8.2002 and on the same day
issued Ext. P1 postdated cheque for encashing it on 11.9.2002
and when it was presented for encashment it was dishonoured
for want of sufficient funds. The defence case was that
petitioner had no transaction with first respondent and he had
borrowed Rs.50,000/- from the sister of the first respondent,
who is a police constable and in that transaction Ext.P1 cheque
was issued as a signed blank cheque and that too as security and
later the amount was paid but cheque was not returned and no
amount is due from the petitioner to first respondent and hence
no offence under section 138 of Negotiable Instruments Act was
committed. Though learned counsel argued that from evidence
of PW1 it is not proved that Ext.P1 cheque was issued towards
discharge of a legally recoverable debt and the defence case was
probablised, learned Magistrate and learned Sessions Judge on
appreciating the evidence found that petitioner borrowed
Rs.1,50,000/- and issued Ext.P1 cheque towards its repayment
and did not accept the defence case. Learned counsel made
available the copy of the deposition of PW1, the copy of Ext.P9
reply notice and copy of the questioning under section 313 of
CRRP 3243/08 4
Cr.P.C. On going through these materials, I cannot agree with
the submission of the learned counsel that appreciation of
evidence was perverse. Even though it was suggested to PW1
that petitioner had borrowed money from his sister and issued a
blank cheque and Ext.P1 is that cheque, PW1 denied the case.
Apart from the suggestion, no other material was produced in
support of the case. In fact evidence of PW1 with regard to the
original transaction on 11.8.2002 was not seriously cross-
examined. On appreciating the evidence the view taken by
Courts below is a probable and reasonable view that could be
taken on the evidence. It is proved that Ext.P1 cheque was
issued towards the repayment of a legally recoverable debt. It is
also proved that the cheque was dishonoured for want of
sufficient funds and complainant had complied with all the
statutory formalities provided under section 138 and 142 of
Negotiable Instruments Act. Conviction of the petitioner is
perfectly legal.
5. Then the only question is with regard to the sentence.
Learned Sessions Judge modified the substantive sentence to
simple imprisonment for six months retaining the compensation.
Ext.P1 cheque is for Rs.1,50,000/-. Interest of justice will be met
CRRP 3243/08 5
if the sentence is modified to imprisonment till rising of the
Court and a fine for the amount covered by dishonoured cheque
with a direction to pay the same on realisation to respondents 2
and 3 as compensation. So long as the sentence is not varied or
modified against the interest of respondents 2 and 3, it is not
necessary to issue notice to them.
Revision is therefore allowed in part. Conviction of the
petitioner for the offence under section 138 of N.I. Act is
confirmed. Sentence is modified. Petitioner is sentenced to
imprisonment till rising of Court and a fine of Rs.1,50,000/- and
in default simple imprisonment for two months. On realisation of
fine it is to be paid to respondents 2 and 3 as compensation
under section 357 (1) of Cr.P.C. Petitioner is granted two
months time from today to pay the fine. Petitioner is directed to
appear before learned Magistrate on 30.12.2008.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-