IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 984 of 2008()
1. N. RAJAPPAN CHETTIYAR, AGED 37 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. RAJENDRAN PILLAI,
For Petitioner :SRI.V.VENUGOPALAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/10/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO. 984 OF 2008
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Dated this the 30th day of October,2008
ORDER
Petitioner is the accused and second respondent
the complainant in C.C.222/1997 on the file of
Judicial First Class Magistrate,Paravoor. Second
respondent lodged the complaint contending that on
30.11.1996 petitioner borrowed Rs.35,000/- and
towards its repayment issued Ext.P1 cheque drawn in
his account maintained in Paravur branch of
S.N.V.R.C. Bank and when the cheque was presented
for encashment, it was dishonoured under Ext.P2
for want of sufficient funds and second respondent
sent Ext.P4 notice in the correct address of the
petitioner demanding the amount but it was not
received by the petitioner and was returned
unclaimed and petitioner did not pay the amount and
thereby committed offence under section 138 of
Negotiable Instruments Act. Learned Magistrate
took cognizance of the offence. Petitioner
CRRP 984/2008 2
appeared before the Magistrate and pleaded not
guilty. Second respondent was examined as PW1 and
manager of the bank was examined as PW2 and Exts.P1
to P6 were marked. Petitioner did not adduce any
evidence. Learned Magistrate on the evidence found
the petitioner guilty. He was convicted and
sentenced to simple imprisonment for three months
and a compensation of Rs.35,000/- under section 357
(3) of the Code of Criminal Procedure. Petitioner
challenged the conviction and sentence before
Sessions Court, Kollam in Crl.A.239/2000. Learned
Sessions Judge on reappreciation of evidence
confirmed the conviction and sentence and dismissed
the appeal. It is challenged in this revision.
2. Learned counsel appearing for petitioner
was heard and the records called for from the
learned Magistrate were perused.
3. The argument of the learned counsel
appearing for petitioner is that Ext.P1 cheque was
not issued in the account maintained by the
petitioner and therefore no offence under section
CRRP 984/2008 3
138 of N.I. Act was committed. Learned counsel
argued that evidence of PW2 establish that the
account was not opened by the petitioner and there
is a correction in the account number in Ext.P1 and
therefore courts below should have found
petitioner not guilty. Learned counsel also argued
that petitioner is only a driver and there is no
evidence to prove that Ext.P1 cheque was issued
towards repayment of any legally recoverable debt
and therefore the conviction is not sustainable.
Learned counsel finally submitted that in any case
the sentence awarded is excessive and may be
modified.
4. Though learned counsel vehemently argued
that Ext.P1 cheque was not issued in the account
maintained by petitioner, on going through the
records including the evidence of PW2 relied upon
by the learned counsel, I cannot agree with the
submission. Ext.P6 is the ledger extract of the
account No.11166. Ext.P6 establishes that cheque
leaf 6221 was encashed in that account on
CRRP 984/2008 4
29.11.1994. Ext.P1 cheque relates to the same
cheque book its number being 6226. Though it was
argued that there is correction in the account
number seen in Ext.P1 what is relied upon is the
third figure 1 which is seen darkened. Ext.P1
shows that the cheque relates to account No.11166,
which is the account evidenced by Ext.P6. Though
learned counsel argued that petitioner did not
maintain that account, it is seen that when second
respondent was examined as PW1 there was no case
for the petitioner that he is not having an account
in that Bank or that Ext.P1 cheque does not relate
to his account. On the other hand, what was
suggested to PW1 was that he had borrowed
Rs.20,000/- and towards its security he issued a
blank cheque and second respondent converted that
cheque to Ext.P1 cheque for Rs.35,000/- and he had
repaid Rs.15,000/-. There is absolutely no
evidence to prove the alleged discharge as claimed
by the petitioner or that the amount borrowed was
not Rs.35,000/- but Rs.20,000/-. Learned
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Magistrate and learned Sessions Judge appreciated
the evidence in the proper perspective and found
that Ext.P1 cheque was issued towards repayment of
Rs.35,000/- which was borrowed by the petitioner
from second respondent. Evidence also establish
that Ext.P1 cheque was drawn in the account
maintained by the petitioner and it was dishonoured
for want of sufficient funds. Ext.P4 notice was
sent to the correct address of the petitioner. It
was returned unclaimed after serving intimation .
In such circumstance, findings of the courts below
that petitioner committed the offence under section
138 of Negotiable Instruments Act is perfectly
legal.
5. Then the only question is with regard to
the sentence. So long as the sentence is not
varied or modified as against the interest of the
second respondent, it is not necessary to issue
notice to second respondent. Considering the
nature of the offence and the facts as disclosed in
the evidence, interest of justice will be met if
CRRP 984/2008 6
the sentence is modified to imprisonment till
rising of the court and fine.
Revision is allowed in part. Conviction for
the offence under section 138 of Negotiable
Instruments Act is confirmed. The sentence is
modified to imprisonment till rising of the court
and a fine of Rs.36,000/- and in default simple
imprisonment for two months. On realisation of the
fine, Rs.35,000/- to be paid to second respondent
as compensation under section 357(1) of the Code of
Criminal Procedure. Petitioner is directed to
appear before the learned Magistrate on 31.12.2008.
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