IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3546 of 2008()
1. A.T. HASHIM, S/O.KUNHAHAMMED, AGED
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. K.P. SHAMEER, S/O. MUSTAFA,
For Petitioner :SRI.P.M.PAREETH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3546 OF 2008
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Dated this the 4th day of November, 2008
O R D E R
Revision petitioner is the accused and second respondent
the complainant in C.C.280 of 2001 on the file of Judicial First
Class Magistrate-I, Kannur. Case of the first respondent was
that towards the repayment of Rs.6,500/- borrowed by the
petitioner, he issued Ext.P1 cheque dated 15.4.2000 drawn in
the account maintained by him in Kannur Branch of South
Indian Bank. When the cheque was presented for encashment,
under Ext.P2 it was dishonoured for want of sufficient funds. In
spite of Ext.P3 notice served on the petitioner, under Ext.P5, he
did not pay and thereby committed the offence under section
138 of Negotiable Instruments Act. Petitioner pleaded not
guilty. On the evidence of first respondent as PW1 and Exts.P1
to P5 and a witness on the side of petitioner as DW1, learned
Magistrate convicted and sentenced petitioner to simple
imprisonment for six months and a compensation of Rs.6,500/-.
Petitioner challenged the conviction and sentence before
Sessions Court, Thalassery in Crl. Appeal 616 of 2002. Learned
CRRP3546/08 2
Sessions Judge on reappreciation of evidence confirmed the
conviction and sentence and dismissed the appeal. It is
challenged in this revision.
2. Learned counsel appearing for petitioner was heard.
3. Learned counsel did not challenge the conviction but
submitted that the sentence awarded is harsh and even though
the amount covered by the dishonoured cheque is only
Rs.6,500/-, Courts below sentenced the petitioner to undergo
simple imprisonment for six months. So long as the sentence is
not varied or modified against the interest of second respondent,
it is not necessary to issue notice to him.
4. Evidence of PW1 and DW1 were properly appreciated
by the Courts below. It is established that Ext.P1 cheque was
issued towards repayment of Rs.6,500/- borrowed earlier. It is
also proved that Ext.P1 cheque was dishonoured for want of
sufficient funds and second respondent had complied with all
the statutory formalities provided under section 138 and 142 of
N.I. Act. Conviction of the petitioner for offence under section
138 is perfectly legal.
5. Then the only question is with regard to the sentence.
When the amount covered by the dishonoured cheque is only
CRRP3546/08 3
Rs.6500/- the sentence of simple imprisonment for six months
apart from compensation for the amount covered by the
dishonoured cheque is definitely harsh. Interest of justice will
be met if the sentence is modified to imprisonment till rising of
Court and fine.
Revision is allowed in part. Conviction 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 fine of Rs.7,000/- and in default simple
imprisonment for one month. On realisation of fine Rs.6,500/- is
to be paid to second respondent as compensation under section
357(1) of Cr.P.C. Petitioner is directed to appear before learned
Magistrate on 16.12.2008.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-