IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 304 of 2009()
1. BABY PAUL,S/O.PAULOSE,
... Petitioner
Vs
1. BABU P.N.@ BABY PACKUNNEL HOUSE,
... Respondent
2. STATE OF KERALA REP.BY THE PUBLIC
For Petitioner :SRI.SUNU P.JOHN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/02/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.304 OF 2009
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Dated 4th February 2009
O R D E R
Revision petitioner is the accused and
first respondent, the complainant in C.C.109/2004
on the file of Judicial First Class Magistrate,
Kolencherry. Revision petitioner was convicted and
sentenced to simple imprisonment for six months and
compensation of Rs.1,00,000/- for the offence under
Section 138 of Negotiable Instruments Act. Revision
petitioner challenged the conviction before Additional
Sessions court, Ernakulam in Crl.A.333/2008. Learned
Additional Sessions Judge on re-appreciation of the
evidence, confirmed the conviction and sentence and
dismissed the appeal. It is challenged in this
revision.
2. Learned counsel appearing for revision
petitioner was heard.
3. In view of the evidence on record and the
concurrent findings of fact learned counsel appearing
for revision petitioner submitted that revision
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petitioner is not challenging the conviction and
sentence may be modified.
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 first respondent and issued
Ext.P1 cheque towards its repayment which was
dishonoured for want of sufficient funds, when presented
for encashment. It is also established that first
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. The the question is regarding the sentence.
The learned Magistrate sentenced revision petitioner to
simple imprisonment for six months and compensation of
Rs.1,00,000/- Sessions Judge confirmed it. Cheque is
for Rs.1,50,000/-. Notice was already issued to first
respondent and first respondent in the revision
appeared through the learned counsel. So long as the
sentence is not altered or modified against the
interest of first respondent, first respondent need
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3
not have any grievance against modification of the
sentence. Considering the entire facts and
circumstances of the case, interest of justice will be
met, if sentence is modified to imprisonment till rising
of court and fine for the amount covered by the
dishonoured cheque with a direction to pay the same on
realisation to first respondent as compensation.
6. Revision 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.1,50,000/- and in default simple imprisonment for
three months. On realisation of fine, it is to be paid
to first respondent as compensation under Section 357
(1)(b) of Code of Criminal Procedure. Revision
petitioner is granted three months time to pay the fine.
Revision petitioner is directed to appear before
Judicial First Class Magistrate, Kolencherry on
4/5/2009.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.