IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3536 of 2008()
1. T.M.ASOKAN, S/O.KUNHIRAMAN NAIR,
... Petitioner
Vs
1. CHANDRAN, S/O.KUNHIRAMAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3536 OF 2008
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Dated this the 27th day of November, 2008
O R D E R
Revision petitioner is the accused and first respondent
the complainant in C.C. 470 of 2006 on the file of Judicial First
Class Magistrate-II, Perambra. First respondent lodged the
complaint contending that revision petitioner borrowed
Rs.75,000/- on 21.12.2005 and towards its repayment issued
Ext.P1 cheque dated 31.5.2006 drawn in his account and when
the cheque was presented for encashment, it was dishonoured
for want of sufficient funds under Ext.P2 and in spite of Ext.P3
notice, demanding the amount served under Ext.P5, petitioner
did not pay and instead Ext. P6 reply notice was sent and
thereby committed the offence under section 138 of Negotiable
Instruments Act. Petitioner pleaded not guilty. Learned
Magistrate on the evidence of first respondent as PW1 and
Exts.P1 to P6 found the petitioner guilty. He was convicted and
sentenced to simple imprisonment for three months and a
compensation of Rs.75,000/- and in default simple imprisonment
for three months. Petitioner challenged the conviction before
CRRP 3536/08 2
Sessions Court, Kozhikode in Crl. Appeal 564 of 2007. Learned
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 revision petitioner was
heard.
3. Learned counsel did not challenge the conviction and
sought only modification of the sentence and time for payment of
amount.
4. So long as the sentence is not varied or modified
against the interest of first respondent, it is not necessary to
issue notice to first respondent.
5. The judgments of the Courts below establish that
evidence was properly appreciated. The evidence of PW1
establish that Ext.P1 cheque was issued towards discharge of
Rs.75,000/- borrowed earlier. It is also proved that the cheque
was dishonoured for want of sufficient funds. It is further
proved that first respondent had complied with all the statutory
formalities provided under section 138 and 142 of Negotiable
Instruments Act. Conviction of the petitioner for the offence
under section 138 of N.I. Act is perfectly legal.
CRRP 3536/08 3
6. Then the only question is regarding the sentence.
Though learned Magistrate awarded a substantive sentence it
was reduced by the learned Sessions Judge. From the nature of
the offence and circumstances of the case, interest of justice will
be met if the sentence is modified to imprisonment till rising of
Court in addition to fine with a direction to pay the fine on
realisation to first respondent as compensation.
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 Court and a fine of Rs.80,000/- and in
default simple imprisonment for two months. On realisation of
fine, Rs.75,000/- is to be paid to first respondent as
compensation under section 357(1)(b) of Code of Criminal
Procedure. On the request of the learned counsel, revision
petitioner he is granted six months time from today, to pay the
fine. Revision petitioner is directed to appear before the
Magistrate on 28.5.2009.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-