High Court Kerala High Court

Shaji Thomas vs M/S.Benz Automobiles on 1 July, 2010

Kerala High Court
Shaji Thomas vs M/S.Benz Automobiles on 1 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 121 of 2003()


1. SHAJI THOMAS, AUTO CONSULTANT,
                      ...  Petitioner

                        Vs



1. M/S.BENZ AUTOMOBILES, BANERJI ROAD,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.JOSY ANTONY

                For Respondent  :SRI.P.GOPAKUMARAN NAIR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :01/07/2010

 O R D E R
             M.Sasidharan Nambiar, J.
            --------------------------
              Crl.R.P.No.121 of 2003
            --------------------------

                       ORDER

Petitioner, the accused in C.C.No.128/1998 on

the file of Additional Chief Judicial Magistrate’s

Court (Economic Offences), Ernakulam, was convicted

and sentenced to rigorous imprisonment for two

months and a compensation of Rs.5,000/- and in

default, simple imprisonment for two months for the

offence under Section 138 of Negotiable Instruments

Act. First respondent is the complainant.

Petitioner challenged the conviction and sentence

before Sessions Court, Ernakulam in Crl.A.No.

254/2000. Learned Additional Sessions Judge, on re-

appreciation of evidence, confirmed the conviction,

but, modified the sentence to simple imprisonment

from rigorous imprisonment. It is challenged in the

revision.

2. Learned counsel appearing for the petitioner

and first respondent were heard.

CRRP 121/03 2

3. Exhibit P1, the dishonoured cheque, is for

Rs.17,802.70 and was issued on 30.11.1994. The fact

that the cheque was dishonoured for want of

sufficient funds and first respondent had complied

with all statutory formalities are not disputed.

Learned counsel appearing for the petitioner

submitted that subsequent to the filing of the

complaint, petitioner paid Rs.8,000/- to the first

respondent and that fact was admitted by PW1 before

the trial court and it is recorded by the learned

Magistrate in paragraph 10 of the judgment. It is

also submitted that as directed by this Court, for

getting suspension of the sentence, petitioner

deposited half of the cheque amount before the

trial court and by depositing half of the cheque

amount and paying Rs.8,000/-, as admitted by PW1,

petitioner has already paid Rs.16,900/- and only

less than Rs.1,000/- remains to be paid and

therefore, interest of justice will be met if the

sentence is modified.

CRRP 121/03 3

4. Learned counsel appearing for the first

respondent submitted that though first respondent

has received Rs.8,000/-, as admitted by PW1, he has

no information about the deposit before the trial

court and the sentence could be modified in

accordance with law.

5. On going through the judgments of the courts

below, I find no reason to interfere with the

conviction for the offence under Section 138 of

Negotiable Instruments Act. But, considering the

fact that petitioner has paid Rs.8,000/- out of

Rs.17,802.70, due under the dishonoured cheque,

interest of justice will be met if the sentence is

modified to imprisonment rill rising of court and a

compensation of Rs.12,000/- to be paid to the first

respondent and in default simple imprisonment for

one month.

Revision is allowed in part. Conviction of the

petitioner for the offence under Section 138 of

Negotiable Instruments Act is confirmed. The

CRRP 121/03 4

sentence is modified to imprisonment till rising of

court and a compensation of Rs.12,000/- to be paid

to the first respondent and in default simple

imprisonment for one month. If petitioner has

deposited any amount before the Magistrate as

directed by this Court to suspend the sentence, he

need deposit only the balance amount. Petitioner is

also permitted to pay the balance amount directly

to the first respondent and produce the receipt and

satisfy the Magistrate that compensation has been

paid. Petitioner is directed to appear before

Additional Chief Judicial Magistrate (Economic

Offences), Ernakulam on 10.08.2010. Chief Judicial

Magistrate is directed to execute the sentence.




1st July, 2010          (M.Sasidharan Nambiar, Judge)
tkv

CRRP 121/03    5




                M.Sasidharan Nambiar, J.

               --------------------------

                 Crl.R.P.No.121 of 2003

               --------------------------

                          ORDER



                     1st July, 2010