IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3441 of 2008()
1. A.P.MAMMAD, S/O.POCKER, MUNNAYIKAD
... Petitioner
Vs
1. K.P.ABDUL AZEEZ, S/O.ABDUL HAMMEED HAJI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/10/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3441 OF 2008
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Dated this the 22nd day of October,2008
ORDER
Petitioner is the accused and first respondent
the complainant in S.T.165/2006 on the file of
Judicial First Class Magistrate II (Forest
Offences), Manjeri. Case of the first respondent
was that petitioner approached him for purchase of
gold ornaments and gold ornaments was arranged from
one Jaffer a friend and he purchased them and then
sold to the petitioner for an amount of
Rs.2,03,000/- out of which petitioner paid
Rs.37,000/- in cash and towards the balance issued
Ext.P1 post dated cheque drawn in his account
maintained in Manjeri Co-operative Bank. When it
was presented for encashment, it was dishonoured
for want of sufficient funds. Inspite of notice
served on the petitioner, demanding the amount
covered by Ext.P1, he did not pay the amount and
thereby committed the offence under section 138 of
CRRP 3441/2008 2
Negotiable Instruments Act. Petitioner pleaded not
guilty. Learned Magistrate on the evidence of
first respondent as PW1 and Jaffer from whom the
gold ornaments were purchased as PW2 and Exts.P1 to
P7 and the evidence of the petitioner as DW1 and
Ext.D1 advertisement in the newspaper, found the
petitioner guilty. He was convicted and sentenced
to simple imprisonment for three months and a
compensation of Rs.1,66,000/- and in default simple
imprisonment for two months. Petitioner challenged
the conviction and sentence before Sessions Court,
Manjeri in Crl.A.313/2007. Learned Sessions Judge
on reappreciation of evidence confirmed the
conviction but modified the sentence to
imprisonment till rising of the court and a
compensation of Rs.1,66,000/- and in default simple
imprisonment for two months. The revision is filed
challenging the conviction and sentence.
2. Learned counsel appearing for petitioner
was heard.
3. The argument of the learned counsel for
CRRP 3441/2008 3
petitioner is that courts below did not properly
appreciate the evidence. It was pointed out that
the inherent improbability of the case was not
properly born in mind while appreciating the
evidence. It was also argued that evidence of PW1
was that Ext.P1 cheque was written and brought by
the petitioner to the shop of first respondent and
when the case is that the cheque was issued towards
the balance amount payable for the purchase of
gold ornaments, a cheque could not have been
written and brought to the shop of PW1 without
ascertaining the price of the goods which could be
fixed only after purchasing the gold ornaments and
therefore evidence of PW1 should have been
disbelieved and so the conviction of the petitioner
is not sustainable. Learned counsel finally
submitted that in any case petitioner may be
granted six months time to pay the amount as
directed by the Sessions Judge.
4. The evidence of first respondent as PW1 was
fully corroborated by the evidence of PW2. Evidence
CRRP 3441/2008 4
of Pws.1 and 2 establish that for the purpose of
selling the gold ornaments to the petitioner, on
his request, gold ornaments of PW2 was purchased by
PW1 and was then sold to the petitioner. Evidence
of Pws.1 and 2 also establish that towards the
value of the gold ornaments Rs.37,000/- was paid by
the petitioner and for the balance Ext.P1 cheque
was issued. Though PW1 deposed that Ext.P1 cheque
was not written in his presence and it was written
and brought to the shop, the improbability
canvassed by the counsel was cleared by the
further evidence of PW1 on reexamination stating
that after fixing the price to be paid, petitioner
had brought the cheque written and then signed in
the presence. I find no reason to disbelieve the
evidence of PW1 corroborated by PW2 and accepted
by the court below. Though petitioner has a case
that along with some other cheques Ext.P1 cheque
was also lost and Ext.D1 advertisement was pressed
into service, courts below rightly disbelieved
Ext.D1 as the publication was subsequent to the
CRRP 3441/2008 5
dishonour of Ext.P1 cheque and also because only
the number of the dishonoured cheque was mentioned
therein eventhough case of the petitioner is that
several cheques were lost. In such circumstance,
on appreciating the evidence, I find no reason to
differ with the findings of the courts below.
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 of
Negotiable Instruments Act. Conviction of the
petitioner for the offence under section 138 of
Negotiable Instruments Act is therefore perfectly
legal.
5. Then the only question is with regard to
the sentence. The substantive sentence was reduced
by the Sessions Judge to imprisonment till rising
of the court. The compensation was confirmed. But
in view of the decision of the Apex Court that when
compensation is awarded under section 357(3) of the
Code of Criminal Procedure, a default sentence
CRRP 3441/2008 6
cannot be awarded the sentence is not legal to that
extent. That defect could be cured if the sentence
is modified to a fine with a direction to pay the
compensation to first respondent under sub section
(1) of Section 357 of the Code of Criminal
Procedure.
Criminal Revision Petition is allowed in part.
The conviction for the offence under section 138 of
Negotiable Instruments Act is confirmed. Sentence
is modified to imprisonment till rising of the
court and a fine of Rs.1,66,000/- to be paid within
six months from today and in default simple
imprisonment for two months. On realisation of the
fine, it shall be paid to first respondent as
compensation under section 357(1) of Code of
Criminal Procedure. Petitioner is directed to
appear before the Magistrate on the expiry of six
months from today.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
CRRP 3441/2008 7
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006