IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3817 of 2008()
1. K.N. KRISHNANKUTTY,
... Petitioner
Vs
1. K.V. VISWANATHAN, KARICKAL HOUSE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.M.J.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/11/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3817 OF 2008
===========================
Dated this the 26th day of November,2008
ORDER
Revision petitioner is the accused and first
respondent the complainant in C.C.863/2004 on the
file of Judicial First Class Magistrate,
Ettumanoor. Petitioner was convicted and sentenced
to simple imprisonment for one month and a
compensation of Rs.35,000/- and in default simple
imprisonment for one month for the offence under
section 138 of Negotiable Instruments Act.
Petitioner challenged the conviction before
Sessions Court, Kottayam in Crl.A.276/2007.
Learned Additional Sessions Judge on reappreciation
of evidence confirmed the conviction and sentence
and dismissed the appeal. It is challenged in the
revision.
2. Learned counsel appearing for the
petitioner was heard.
CRRP3817/2008 2
3. The argument of the learned counsel is that
there is no whisper in the complaint or in Ext.P3
notice sent by the first respondent demanding the
amount covered by Ext.P1 cheque that there was a
separate transaction in respect of purchase of
building materials and when first respondent was
examined as PW1 it was admitted that there was
another transaction with regard to the purchase of
building materials and in such circumstance, courts
below should have accepted the case of the revision
petitioner that Ext.P1 cheque was issued as a blank
cheque towards the security of that transaction and
revision petitioner had discharged that liability.
It is therefore argued that conviction is not
sustainable. Learned counsel also submitted that
petitioner is a poor barber and is not financially
capable of paying the amount and in such
circumstance, in the interest of justice the
sentence may be modified.
4. On hearing the learned counsel and going
CRRP3817/2008 3
through the judgments of the courts below, I do not
find any reason to interfere with the conviction.
Though as PW1, first respondent admitted that
petitioner had purchased building materials from
him, it is his specific case that Ext.P1 cheque
has nothing to do with the said transaction.
Apart from the suggestion that Ext.P1 cheque was
issued as a blank signed cheque as security at the
time of purchasing building materials, no evidence
was adduced by the petitioner to establish that any
such blank cheque was given. PW1 denied that case.
Even when PW1 was cross examined, nothing was
brought out to probablise the said case. If in
fact Ext.P1 cheque was issued as a blank cheque and
that too as a security for the outstanding
liability of Rs.4,570/-, being the amount payable
by the revision petitioner for purchasing building
materials, on receipt of Ext.P3 notice demanding
Rs.35,000/- due under Ext.P1 cheque petitioner
would have sent a reply stating that Ext.P1 was not
CRRP3817/2008 4
issued towards repayment of the amount as claimed
by first respondent and instead was issued as a
blank cheque. On going through the judgments of
the courts below, the view taken by the learned
Magistrate and learned Sessions Judge is definitely
the possible and reasonable view that could be
taken on the evidence. Therefore findings of the
courts below that Ext.P1 cheque was issued towards
discharge of legally recoverable debt is perfectly
legal and is in order. It is also proved that
Ext.P1 cheque was dishonoured for want of
sufficient funds and first respondent had complied
with all the statutory formalities as provided
under sections 138 and 142 of Negotiable
Instruments Act. Conviction of the petitioner for
the offence under section 138 of Negotiable
Instruments Act is perfectly legal.
5. Then the only question is regarding the
sentence. So long as the sentence is not varied or
modified against the interest of the first
CRRP3817/2008 5
respondent, it is not necessary to issue notice to
first respondent. Ext.P1 cheque is for Rs.35,000/-
and was issued on 6.5.2004. Considering the entire
facts and circumstances of the case, interest of
justice will be met if the sentence is modified to
imprisonment till rising of the court in addition
to a fine of Rs.35,000/- and in default simple
imprisonment for one month. On realisation of
fine, it is to be paid to first respondent as
compensation under section 357(1) of the Code of
Criminal Procedure.
Revision is allowed in part. Conviction of
the petitioner for the offence under section 138 of
Negotiable Instruments Act is confirmed. Sentence
is modified. Petitioner is sentenced to
imprisonment till rising of the court in addition
to a fine of Rs.35,000/- and in default simple
imprisonment for one month. On realisation of
fine, it is to be paid to first respondent as
compensation under section 357(1) of the Code of
CRRP3817/2008 6
Criminal Procedure. On the submission of the
learned counsel appearing for the revision
petitioner, revision petitioner is granted three
months time from today to pay the fine. He is
directed to appear before the Magistrate on
29.2.2009.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006