High Court Kerala High Court

P.Simon vs G.Soman on 23 January, 2009

Kerala High Court
P.Simon vs G.Soman on 23 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 118 of 2009()


1. P.SIMON, SMITHA BHAVAN, KALLUVILA,
                      ...  Petitioner

                        Vs



1. G.SOMAN, S/O.GOPALAN, KUZHIVILA MELE
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.G.SUDHEER

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :23/01/2009

 O R D E R
                 M. SASIDHARAN NAMBIAR,J.

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

                    CRL.R.P.No.118 OF 2009

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

            Dated this the 23rd day of January, 2009


                               O R D E R

Revision petitioner is the accused and first respondent

the complainant in C.C.155 of 2005 on the file of Judicial First

Class Magistrate-V, Neyyattinkara. Revision petitioner was

convicted and sentenced for the offence under section 138 of

Negotiable Instruments Act. Revision petitioner challenged the

conviction before Sessions Court, Thiruvananthapuram in

Crl.Appeal 821 of 2007. Learned Sessions Judge on

reappreciation of evidence confirmed the conviction but modified

the sentence to imprisonment till rising of Court and fine of

Rs.1,55,000/- and in default simple imprisonment for six months

with a direction to pay the fine on realisation to first respondent

as compensation under section 357(1) (b) of Code of Criminal

Procedure. Revision is filed challenging the conviction and

sentence.

2. Learned counsel appearing for revision petitioner was

heard.

CRRP 118/2009
2

3. Learned counsel submitted that in view of the

evidence on record and the concurrent findings of fact revision

petitioner is not challenging the conviction, but he may be

granted three months’ time to pay the fine as directed by the

learned Sessions Judge.

4. On going through the judgments of the Courts below,

I find no reason to interfere with the conviction. Evidence of

PW1 establish that revision petitioner borrowed Rs.1,50,000/- on

4.2.2002 and towards its repayment issued Ext.P1 cheque dated

28.5.2007, which was dishonoured for want of sufficient funds

when presented for encashment. Though revision petitioner

disputed his signature, Courts below rejected the case based on

the evidence of PW1. Though it was also contended that being a

joint account, the cheque signed by the revision petitioner alone

could not have been encashed, evidence of DW1, the Manager of

the bank, establish that there is no bar for operation of the

account by one of the joint account holders. Moreover, the

dishonour was not for the reason that cheque was signed by only

one of the joint account holders. Evidence also establish that

first respondent had complied with all statutory formalities

CRRP 118/2009
3

provided under section 138 and 142 of Negotiable Instruments

Act. Conviction of the revision petitioner for the offence under

section 138 of Negotiable Instruments Act is perfectly legal.

5. Then the only question is regarding the sentence.

Learned Sessions Judge modified the sentence to imprisonment

till rising of Court and fine with a direction to pay the fine on

realisation to first respondent as compensation. The fine

awarded is only Rs.5,000/- in excess of the amount covered by

the dishonoured cheque, issued in 2002. In such circumstances

I find no reason to interfere with the sentence also.

Revision is dismissed. Revision petitioner is granted three

months time to pay the compensation. Revision petitioner is

directed to appear before Judicial First Class Magistrate-V,

Thiruvananthapuram on 24.4.2009.

M. SASIDHARAN NAMBIAR, JUDGE

okb