IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4642 of 2007()
1. P.S.NANDAKISHORE, S/O SIDHARTHAN,
... Petitioner
Vs
1. R.K.SATHEESH KUMAR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/10/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO. 4642 OF 2007
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Dated this the 20th day of October,2008
ORDER
Petitioner is the accused and first respondent
the complainant in S.T 525/2004 on the file of
Judicial First Class Magistrate, Palakkad. First
respondent lodged the complaint contending that
petitioner borrowed Rs.1,75,000/- agreeing to repay
the same with interest and when the amount was
demanded, Ext.P1 cheque was issued for
Rs.1,90,000/- from the account maintained by him in
Lord Krishna Bank, Palakkad Branch and when the
cheque was presented for encashment, it was
dishonoured for want of sufficient funds under
Ext.P2 memo and inspite of notice served on the
petitioner demanding the amount, he did not pay the
amount and thereby committed an offence under
section 138 of Negotiable Instruments Act.
Petitioner pleaded not guilty. First respondent
was examined as PW1 and Exts.P1 to P3 were marked.
CRRP 4642/2007 2
Learned Magistrate on the evidence found the
petitioner guilty. He was convicted and sentenced
to simple imprisonment for one year and a
compensation of Rs.1,90,000/- and in default simple
imprisonment for three months. Petitioner
challenged the conviction and sentence before the
Sessions Court, Palakkad in Crl.A.26/2006. Learned
Sessions Judge on reappreciation of evidence
confirmed the conviction but modified the sentence
to simple imprisonment for six months and the
compensation was confirmed. Revision is filed
challenging the conviction and sentence.
2. Learned counsel appearing for petitioner
and first respondent were heard.
3. Ext.P1 cheque was admittedly drawn in the
account maintained by the petitioner in Lord
Krishna Bank. Evidence of PW1 with ext.P2
establish that when the cheque was presented for
encashment within the period, it was dishonoured
for want of sufficient funds. Ext.P3 notice was
sent which was served on the petitioner, demanding
CRRP 4642/2007 3
the amount. Petitioner did not pay the amount.
Though petitioner was not examined, his defence
when questioned under section 313 of Code of
Criminal Procedure was that he had issued two
signed cheques to first respondent apart from a
signed blank stamp paper and another blank paper to
enable first respondent to raise funds. When first
respondent was examined as PW1, he was cross
examined based on this defence. PW1 denied that
fact. Though PW1 was cross examined, nothing was
brought out to disbelieve the evidence of PW1.
Learned Magistrate and learned Sessions Judge
appreciated the evidence and found that Ext.P1
cheque was issued towards repayment of the amount
borrowed with interest. On the evidence, I do not
find any reason to interfere with that finding. If
Ext.P1 cheque was not issued towards repayment of
the amount due, atleast when Ext.P3 notice was
received, petitioner could have sent a reply
stating the true facts. On appreciation of the
entire evidence courts below rightly found that
CRRP 4642/2007 4
Ext.P1 cheque was issued towards repayment of the
amount due. In such circumstance, conviction of
the petitioner for the offence under section 138 of
N.I Act is perfectly legal.
4. Then the only question is with regard to
the sentence. Ext.P1 cheque is for Rs.1,90,000/-.
Learned Sessions Judge modified the sentence to
simple imprisonment for six months apart from a
compensation under section 357(3) of the Code of
Criminal Procedure for the amount covered by the
cheque. Interest of justice will be met if the
sentence is reduced to imprisonment till rising of
the court in addition to a fine of Rs.1,95,000/-
and in default simple imprisonment for two months.
On realisation of the fine amount, Rs.1,90,000/- is
to be paid to first respondent as compensation.
Petitioner is granted two months time to pay the
fine amount.
Revision is allowed in part. Conviction of the
petitioner for the offence under section 138 of
Negotiable Instruments Act is confirmed. Sentence
CRRP 4642/2007 5
is modified to imprisonment till rising of the
court and a fine of Rs.1,95,000/- to be paid within
two months from today and in default simple
imprisonment for two months. On realisation of the
fine, Rs.1,90,000/- is to be paid to first
respondent as compensation under section 357(1) of
Code of Criminal Procedure. Petitioner is directed
to appear before the Judicial First Class
Magistrate, Palakkad on 23.12.2008.
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