IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3666 of 2008()
1. T.P.SUBRAMANIAN, AGED 39 YEARS
... Petitioner
Vs
1. MANOJKUMAR S/O.MADHAVAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.K.JAYARAJ NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/11/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3666 OF 2008
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Dated this the 14th day of November,2008
ORDER
Revision petitioner is the accused and first
respondent the complainant in S.T.2109/2007 on the
file of Judicial First Class Magistrate-II
(Mobile), Kozhikode. First respondent filed the
complaint contending that on 10.4.2005 petitioner
borrowed Rs.25,000/- and towards its repayment
issued Ext.P1 cheque dated 23.5.2005 drawn in his
account maintained in Kozhikode Branch of State
Bank of India and when the cheque was presented
under Ext.P2 it was dishonoured for want of
sufficient funds and inspite of Ext.P3 notice
served on the petitioner under Ext.P4, he did not
repay the amount and thereby committed the offence
under section 138 of Negotiable Instruments Act.
Petitioner pleaded not guilty. First respondent
examined as PW1 and Ext.P1 to P4 were marked. On
the side of the petitioner a witness was examined
CRRP 3666/2008 2
as DW1. Learned Magistrate on the evidence found
the evidence of PW1 credible and reliable and
convicted the petitioner for the offence under
section 138 of Negotiable Instruments Act. He was
sentenced to imprisonment till rising of court and
a compensation of Rs.25,000/- and in default simple
imprisonment for two months. Petitioner challenged
the conviction and sentence before Sessions Court,
Kozhikode in Crl.A.506/2007. Learned Additional
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.
3. The argument of the learned counsel is that
courts below did not properly appreciate the
evidence. It was argued that DW1 who is none other
than the brother-in-law of first respondent was
examined and evidence of DW1 establishes that
revision petitioner borrowed Rs.5,000/- in 2000 and
a cheque was issued as security which was not
CRRP 3666/2008 3
returned and on the request of the revision
petitioner, DW1 had intervened and first respondent
had admitted that some amount towards interest is
due and therefore the conviction is not
sustainable. It was also argued that Ext.P1 cheque
is a typewritten cheque which may not the case in
the normal course and if the evidence is properly
appreciated it can only be found that Ext.P1 cheque
was not issued to first respondent, much less
towards discharge of any legally recoverable debt.
4. On hearing the learned counsel and going
through the judgments, I cannot agree with the
submission of the learned counsel that
appreciation of evidence was not proper or
perverse. When first respondent was examined there
was no case for the revision petitioner that his
brother-in-law DW1 had intervened in the dispute or
any incident as spoken to by DW1 had taken place.
If in fact Ext.P1 cheque was not issued to first
respondent towards repayment of the amount, and
was issued as security for a loan obtained in 2000,
CRRP 3666/2008 4
on receipt of Ext.P4 notice, in the ordinary course
revision petitioner would have sent a reply. The
fact that no reply was sent cast serious doubt on
the genuineness of the plea raised by the
petitioner. Moreover a reading of the deposition
of DW1, which was read over by the learned counsel,
makes it clear that he is only deposing in favour
of first respondent either because of his affinity
towards the revision petitioner or enmity towards
the first respondent. In any case his evidence
cannot be relied on especially when such a case was
not put to PW1 while he was cross examined. When
the entire evidence is appreciated, the view taken
by the courts below, is the only possible and
reasonable view that could be taken. As it is
proved that Ext.P1 cheque was issued towards
repayment of the amount borrowed and it was
dishonoured for want of sufficient funds and first
respondent has complied with all the statutory
formalities provided under section 138 and 142 of
Negotiable Instruments Act, his conviction is
CRRP 3666/2008 5
perfectly legal.
5. Then the only question is regarding the
sentence. Learned Magistrate sentenced petitioner
only to imprisonment till rising of court, in
addition to compensation which is also only for
the amount covered by the dishonoured cheque. In
such circumstance, I find no reason to interfere
with the sentence also.
Revision is dismissed.
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