IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3918 of 2008()
1. DAYAKUMAR, AGED 35 YEARS, S/O.BALAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. A.R.SURENDRAN, AGED 42 YEARS,
For Petitioner :SRI.R.REJI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
------------------------------------------
CRL.R.P.NO.3918 OF 2008
------------------------------------------
Dated 16th January 2009
O R D E R
Revision petitioner is the accused and
second respondent, the complainant in C.C.230/2005 on
the file of Judicial First Class Magistrate-I,
Chengannur. Revision petitioner was convicted and
sentenced to simple imprisonment for three months and
compensation of Rs.1,50,000/- an in default simple
imprisonment for two months for the offence under
Section 138 of Negotiable Instruments Act. Revision
petitioner challenged the conviction and sentence
before the Additional Sessions court, Mavelikara in
Crl.A.667/2006. Learned Additional Sessions Judge on
re-appreciation of evidence confirmed the conviction
and sentence and dismissed the appeal. It is
challenged in the revision.
2. Learned counsel appearing for revision
petitioner and learned counsel appearing for second
respondent were heard.
3. Learned counsel appearing for revision
CRRP 3918/08
2
petitioner submitted that in view of the evidence on
record and the concurrent findings of fact, revision
petitioner is not challenging the conviction but
sentence may be modified and time may be granted to make
payment.
4. On going through the judgments of the courts
below, I find no reason to interfere with the
conviction. Evidence establish that revision petitioner
borrowed Rs.1,50,000/- from second respondent and
issued Ext.P1 cheque dated 3/1/2005 for repayment of
that amount, which was dishonoured for want of
sufficient funds when presented for encashment. It is
also proved that second respondent had complied with
all statutory formalities provided under Sections 138
and 142 of Negotiable Instruments Act. In such
circumstances conviction of revision petitioner for the
offence under Section 138 of Negotiable Instruments Act
is perfectly legal.
5. Then the question is regarding the sentence.
Ext.P1 cheque is for Rs.1,50,000/-. Learned Magistrate
awarded a compensation of Rs.1,50,000/- to second
respondent. Considering the entire facts and
circumstances of the case, interest of justice will be
CRRP 3918/08
3
met, if the sentence is modified to imprisonment till
rising of court and fine with a direction to pay
compensation out of the fine to second respondent on
realisation.
Revision petition is allowed in part. Conviction
of revision petitioner for the offence under Section
138 of Negotiable Instruments Act is confirmed. Sentence
is modified. Revision petitioner is sentenced to
imprisonment till rising of court and fine of
Rs.1,60,000/- and in default simple imprisonment for two
months. On realisation of fine Rs.1,50,000/- to be paid
to second respondent as compensation under Section 357
(1)(b) of Code of Criminal Procedure. Revision
petitioner is granted five months time to pay the
fine. Revision petitioner is directed to appear before
Judicial First Class Magistrate-II, Kottayam on
15/6/2009.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.