IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3361 of 2008()
1. T.C.SASI, AGED 46 YEARS, S/O.MADAVAN,
... Petitioner
Vs
1. N.K.OMANA, AGED 42 YEARS, NELLIKUNATH
... Respondent
2. STATE OF KERALA, REP.BY PUBLIC
For Petitioner :SRI.GEORGE MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3361 OF 2008
............................................
DATED THIS THE 21ST DAY OF OCTOBER, 2008
ORDER
Petitioner is the accused in C.C.106 of 2004 on the file of Chief
Judicial Magistrate, Pathanamthitta. First respondent is the
complainant. First respondent lodged the complaint before Chief
Judicial Magistrate, contending that petitioner borrowed Rs.9,00,000/-
and towards its repayment, issued Ext.P1 cheque drawn in his
account and when the cheque was presented for encashment, it was
dishonoured under Ext.P2 for want of sufficient funds and Ext.P4
notice was sent to petitioner in his correct address demanding the
amount covered by the dishonoured cheque and it was returned
unclaimed and petitioner failed to pay the amount and thereby
committed the offence under Section 138 of N.I.Act. Petitioner
appeared before learned Magistrate and pleaded not guilty. First
respondent was examined as PW1. Exts.P1 to P6 were marked.
Petitioner was questioned under Section 313 of Code of Criminal
Procedure. Petitioner did not adduce any evidence.
2. Learned Magistrate, on the evidence, found the petitioner
guilty. He was sentenced to simple imprisonment for six months and
a compensation of Rs.9,00,000/- under Section 357(3) of Code of
Criminal Procedure. Petitioner challenged the conviction and
Crrp 3361/2008 2
sentence before Sessions Court, Pathanamthitta in Crl.A.306 of 2007.
Learned Sessions Judge, on reappreciation of evidence, confirmed the
conviction and sentence and dismissed the appeal. It is challenged in
this revision petition filed under Section 397 and 401 of Code of
Criminal Procedure.
3. Learned counsel appearing for petitioner was heard. The
argument of learned counsel is that courts below was not justified in
accepting the evidence of PW1 when PW1 was not cross examined by
petitioner. It was argued that for the fault of the counsel in not
appearing before learned Magistrate, evidence of PW1 should not
have been accepted by the courts below, when there is no evidence to
prove the capacity of first respondent to pay Rs.9,00,000/-. It was
argued that petitioner had filed an application before learned Sessions
Judge for permission to adduce evidence including cross examination
of PW1 and it should have been granted. Learned counsel finally
submitted that petitioner has been in prison after the conviction and
before filing of the appeal for a period of 61 days and the subsantive
sentence may be reduced to that period.
4. The judgment of learned Magistrate and learned Sessions
Judge establish that petitioner did not cross examine PW1. In fact
PW1 was examined on 27.7.2006 and on the failure of petitioner to
cross examine him case was adjourned to 30.1.2006. Even on that
Crrp 3361/2008 3
day, petitioner did not cross examine PW1 and it was recorded `no
cross’. Petitioner was examined under Section 313 of Code of
Criminal Procedure only on 18.2.2006. At that time, evidence of PW1
was put to the petitioner. Thereafter case was adjourned to 4.3.2006.
Even at that stage, petitioner did not file an application to recall PW1
for cross examination. The appeal memorandum which was made
available by learned counsel also does not disclose why PW1 was not
cross examined. The main grievance was only that petitioner did not
get sufficient opportunity to adduce defence evidence. In such
circumstances, learned Sessions Judge could not be blamed for not
allowing the application to adduce further evidence, including cross
examination of PW1, when there is no material to show that petitioner
could not avail of the opportunity to appear before learned
Magistrate. As the record stands, evidence of PW1 stands unrebutted.
Learned Magistrate and learned Sessions Judge accepted the
evidence and found that Ext.P1 cheque was issued towards the
amount due to first respondent. Evidence also establish that it was
dishonoured for want of sufficient funds and first respondent has
complied with all the statutory formalities provided under 138 and
142 of N.I Act. Therefore conviction of petitioner for the offence
under Section 138 of N.I.Act, is perfectly legal and correct.
5. Then the only question is with regard to the sentence.
Crrp 3361/2008 4
Though Chief Judicial Magistrate sentenced petitioner to simple
imprisonment for six months, in addition to a compensation under
Section 357(3) of Code of Criminal Procedure with a default sentence.
So long as sentence is not to be varied or modified as against the
interest of first respondent, it is not necessary to issue notice to first
respondent. Interest of justice will be met, if the substantive
sentence is reduced to simple imprisonment for two months.
6. Revision petition is allowed in part. While confirming
conviction for the offence under Section 138 of N.I.Act, sentence is
modified to simple imprisonment for two months. Compensation
awarded is confirmed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-