IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3731 of 2008()
1. XAVIER
... Petitioner
Vs
1. K.MADHAVAN PILLAI
... Respondent
For Petitioner :SRI.A.AHZAR
For Respondent :SRI.B.RAGUNATHAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/12/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3731 & 3732 OF 2008
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Dated this the 17th day of December, 2008
O R D E R
Revision petitioner is the accused and first respondent
the complainant in C.C.13 of 2002 and C.C.15 of 2002 on the file
of Judicial First Class Magistrate, Thiruvananthapuram. First
respondent lodged the complaint contending that revision
petitioner issued Ext.P1 cheque towards repayment of
Rs.70,000/- borrowed and Ext.P8 cheque was issued towards
repayment of Rs.60,000/- borrowed and when the cheques were
presented for encashment, they were dishonoured for want of
sufficient funds and in spite of notices demanding the amount
covered by the dishonoured cheques, revision petitioner did not
pay and thereby committed the offence under section 138 of
Negotiable Instruments Act. Revision petitioner resisted the
complaint contending that Ext.P1 and P8 cheques were not
issued by him to the first respondent towards discharge of any
debt or liability. According to the revision petitioner his sister,
DW1, was liable to pay amount to first respondent and towards
its security had executed Ext.D1, sale deed, and as demanded by
CRRP3731/08 & 3732/08 2
first respondent she had given Exts.P1 and P8 cheques of her
brother, the revision petitioner, and they were not issued
towards discharge of any liability but as security. Learned
Magistrate tried both the cases together. On the evidence of
first respondent as PW1 and Exts.P1 to P14 and the sister of the
revision petitioner as DW1 and Exts.D1 and D2, accepted the
case of first respondent and rejected the case of the revision
petitioner and held that Exts.P1 and P8 cheques were issued
towards discharge of legally recoverable debt and convicted
revision petitioner in both cases for the offence under section
138 of Negotiable Instruments Act. He was sentenced to simple
imprisonment for three months in addition to a compensation by
the learned Magistrate. Petitioner challenged the conviction
before Sessions Court, Thiruvananthapuram in Crl.Appeal
442/2003 & 443/2003. Learned Additional Sessions Judge on
reappreciation of evidence confirmed the conviction but
modified the sentence to imprisonment till rising of Court in
both the cases, in addition to a compensation of Rs.75,000/- in
C.C.13/2002 and a compensation of Rs.60,000/- in C.C.15/2002.
Revisions are filed challenging the conviction and sentence.
2. Learned counsel appearing for revision petitioner was
CRRP3731/08 & 3732/08 3
heard.
3. Learned counsel argued that Courts below did not
properly appreciate the evidence and there is no evidence to
prove that Exts.P1 and P8 cheques were issued towards
discharge of existing liability and evidence of DW1 should have
been accepted and it should have been found that those cheques
were given as security for the liability of DW1.
4. On hearing the learned counsel and going through
the judgments of Courts below I find no reason to interfere with
the conviction or the sentence. Case of first respondent as
proved by the evidence of PW1 is that revision petitioner had
borrowed Rs.70,000/- and Rs.60,000/- and issued Exts.P1 and P8
cheques towards repayment of the said debts. Though revision
petitioner had raised a contention that Exts.P1 and P8 cheques
were issued as security by his sister, who was examined as DW1,
learned Magistrate and learned Sessions Judge for valid and
sufficient reasons held that, that case cannot be accepted. If the
defence case sought to be proved by DW1 is to be believed,
Ext.D1 is not a sale deed, but a deed executed as security and in
addition to that security as demanded by first respondent,
cheques of her brother were given. The Courts below on
CRRP3731/08 & 3732/08 4
reappreciation of evidence found that it is highly improbable.
Added to this, in spite of notice demanding the amount covered
by the dishonoured cheques, revision petitioner did not send any
reply, which is not the case if those cheques were given as
security by his sister and there was no liability on the part of the
revision petitioner. When the entire evidence is appreciated in
the proper perspective, the view taken by the Courts below is
definitely a reasonable and possible view that could be taken on
the evidence. I find no reason to interfere with that finding.
Evidence establish that Exts.P1 and P8 cheques were issued
towards discharge of the amount borrowed earlier and those
cheques were dishonoured for want of sufficient funds and in
spite of notices served on the petitioner demanding the amount
he did not pay. It is also established that first respondent had
complied with all the statutory formalities provided under
section 138 and 142 of Negotiable Instruments Act. Conviction
of the revision petitioner for the offence under section 138 of
N.I. Act is perfectly legal.
5. Then the only question is regarding the sentence.
Learned Sessions Judge took a very lenient view and modified
the substantive sentence to imprisonment till rising of Court in
CRRP3731/08 & 3732/08 5
addition to a compensation, which was only for the amount
covered by the dishonoured cheque. In such circumstances I
find no reason to interfere with the sentence also.
Revision petitions are dismissed. Revision petitioner is
granted two months time to pay the compensation. Revision
petitioner is directed to appear before the Magistrate on
19.2.2009.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-