IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2412 of 2008()
1. CHANDRA BOSE, S/O AYYAPPAN, AGED 46
... Petitioner
Vs
1. TOMY VETTIKKATTIL, S/O BABY, AGED 44
... Respondent
2. STATE OFKERALA, REPRESENTED BY ITS
For Petitioner :SRI.R.SURENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/07/2008
O R D E R
V. RAMKUMAR, J.
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Crl.R.P.No.2412 of 2008
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Dated this the 19th day of August, 2008
ORDER
Revision petitioner, who was the accused in C.C.No.92 of
1999 on the file of the J.F.C.M, Mattannur which was a
prosecution under Section 138 of the Negotiable Instruments
Act, 1881, challenges the conviction entered and the sentence
passed against him by the lower appellate court namely
Additional Sessions Court, Thalassery in Crl.Appeal No.530 of
2002. The cheque in question was for a sum of Rs.10,000/-
(Rupees ten thousand only). The trial court convicted the
revision petitioner and sentenced him to undergo simple
imprisonment for one month and to pay the cheque amount of
Rs.10,000/- as compensation to PW1 under Section 357(3)
Cr.P.C. An appeal was preferred by the revision petitioner as
Crl.Appeal No.530 of 2005 before the Sessions Court,
Thalassery. Eventhough the conviction was confirmed, that
court modified the sentence to one of imprisonment till the rising
of the court and to pay the cheque amount as compensation
Crl.R.P.No.2412 of 2008
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under Section 357(3) Cr.P.C with a default sentence of simple
imprisonment for one month.
2. According to the petitioner, as evidenced by Annexure-I
certificate issued by the Superintendent, Central Prison, Kannur,
he had already undergone the substantive sentence of
imprisonment of one month as imposed by the trial court and
since the trial court did not impose any default sentence, the
petitioner who was released from custody on 10.1.03 after
serving the sentence was burdened with an imprisonment for
one more month by way of default sentence by the lower
appellate court. According to the revision petitioner, in an
appeal filed by him he should not have been placed in a more
disadvantagous position than before when he filed the appeal.
The fact that the petitioner was undergoing the sentence of
imprisonment imposed by the trial court does not appear to
have been brought to the notice of the lower appellate court.
When the petitioner has already served the sentence of
imprisonment for one month imposed by the trial court and he
had no obligation to undergo any default sentence for the non-
payment of the compensation as per the judgment of the trial
Crl.R.P.No.2412 of 2008
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court, the lower appellate court ought not to have burdened the
revision petitioner with a default sentence and put him in a more
disadvantageous position, than before. Accordingly, the default
sentence imposed by the lower appellate court is set aside. In all
other respects the judgment of the lower appellate court is
confirmed.
This Crl.R.P. is disposed of as above.
Dated this the 19th day of August, 2008.
V. RAMKUMAR, JUDGE
sj