IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3410 of 2008()
1. MARTIN, S/O.PETER,
... Petitioner
Vs
1. SASIDHARAN PILLAI,S/O.RAGHAVAN PILLAI
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.M.A.FIROSH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3410 OF 2008
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Dated this the 20th day of October, 2008
O R D E R
petitioner is the accused in C.C. 274 of 2005 on the file of
Judicial First Class Magistrate, Vaikom. First respondent is the
complainant. Petitioner was convicted and sentenced to simple
imprisonment for six months and a compensation of Rs.50,000/-
and in default simple imprisonment for two months for the
offence under section 138 of Negotiable Instruments Act.
Petitioner challenged the conviction and sentence before
Sessions Court, Kottayam in Crl.Appeal 887 of 2007. Learned
Sessions Judge on reappreciation of evidence confirmed the
conviction. But the sentence was modified to imprisonment till
rising of the Court and a compensation of Rs.50,000/- and in
default simple imprisonment for two months. The conviction
and sentence is challenged in the revision.
2. Learned counsel appearing for petitioner was heard.
3. The argument of the learned counsel is that Courts
below did not properly appreciate the evidence. It is argued
that Courts below on the evidence of DWs 1 to 3 should have
CRRP 3410/08 2
accepted the case of the petitioner that Exts.P1 and P2 cheques
were issued as security and not towards repayment of the
amount and therefore the conviction is not sustainable. Learned
counsel also argued that evidence of PW1 should not have relied
on by the Courts below and on the evidence it is clear that
Exts.P1 and P2 cheques were not issued towards discharge of an
existing liability.
4. On hearing the learned counsel and going through
the judgments of the Courts below, I cannot agree with the
submission of the learned counsel that appreciation of evidence
was perverse warranting reappreciation. Learned Magistrate
and learned Sessions Judge appreciated the evidence in the
proper perspective and found that evidence of PW1 establishes
that Exts.P1 and P2 cheques were issued towards repayment of
the amount due to first respondent. Learned Magistrate
appreciated the evidence of DWs 1 to 3 and found that the
defence case that Exts.P1 and P2 cheques were issued as
security cannot be believed. Learned Sessions Judge
reappreciated the evidence and confirmed that finding. Though
learned counsel vehemently argued that appreciation of
evidence was not proper, no material was pointed out which was
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omitted to be taken note of by the learned Magistrate or learned
Sessions Judge. The attempt of the learned counsel is to
reappreciate the evidence and to persuade this Court to arrive at
a different finding. So long as the view taken by the learned
Magistrate and learned Sessions Judge is a possible and
reasonable view that could be taken on the evidence, it is not for
this Court to reappreciate the evidence substituting the finding
of the Courts below by a finding of this Court. On proper
appreciation of the evidence, I do not find any reason to
interfere with the findings of the Courts below that Exts.P1 and
P2 cheques were issued towards repayment of the amount due
and when the cheques were presented for encashment, they
were dishonoured for want of sufficient funds and first
respondent has complied with all the statutory formalities
provided under sections 138 and 142 of N.I. Act. Conviction of
the petitioner for the offence under section 138 of N.I. Act is
perfectly legal and correct.
5. Then the question is only with regard to the sentence.
Learned Sessions Judge modified the sentence to imprisonment
till rising of the Court in addition to compensation of Rs.50,000/-
and in default simple imprisonment for two months. As declared
CRRP 3410/08 4
by the Apex Court, when compensation is awarded under section
357(3) of Code of Criminal Procedure, default sentence cannot
be awarded. Therefore to that extent the sentence is not
correct. Interest of justice will be met if the sentence is
modified to imprisonment till rising of the Court and a fine of
Rs.50,000/- and in default simple imprisonment for one month.
On realisation of the fine, it is to be paid to first respondent as
compensation under section 357(1) of Code of Criminal
Procedure. Petitioner is granted one month time to pay the fine.
Petitioner is directed to appear before learned Magistrate on
26.11.2008.
Revision is disposed of as above.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-