IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3586 of 2008()
1. GOPALAKRISHNA PILLAI,
... Petitioner
Vs
1. NIZAMUDHEEN, S/O.HASSANKUNJU,
... Respondent
2. STATE OF KERALA, REP.BY PUBLIC
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/01/2009
O R D E R
M. SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.3586 OF 2008
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Dated this the 20th day of January, 2009
O R D E R
Revision petitioner is the accused and first respondent the
complainant in CC 804 of 2004 on the file of Judicial First Class
Magistrate, Kayamkulam. Revision petitioner was convicted and
sentenced for the offence under section 138 of Negotiable
Instruments Act. He challenged the conviction before Additional
Sessions Court, Mavelikkara in Crl. Appeal 184 of 2006. Learned
Additional Sessions Judge, on reappreciation of evidence, confirmed
the conviction but modified the sentence to simple imprisonment for
three months in addition to compensation of Rs.2,85,000/- and in
default simple imprisonment for two months. Revision is filed
challenged the conviction.
2. Learned counsel appearing for revision petitioner in view
of the evidence on record and concurrent findings of fact submitted
that revision petitioner is not challenging the conviction but the
sentence may be modified and because of the financial conditions of
the petitioner six months time may be granted to pay the amount.
3. On going through the judgments of the Courts below, I
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find no reason to interfere with the conviction. Evidence establish
that revision petitioner issued Ext.P1 cheque in discharge of the
existing liability and the cheque when presented for encashment, was
dishonoured for want of sufficient funds. It is also established that
first respondent had complied with all statutory formalities 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.
4. Then the question is regarding the sentence. So long as
the sentence is not to be varied or modified against the interest of
first respondent, it is not necessary to issue notice to first respondent.
As per the modified sentence first respondent is entitled to
Rs.2,85,000/- as compensation, which is the amount covered by the
dishonoured cheque. Considering the entire facts and circumstances
of the case interest of justice will be met if the sentence is modified to
imprisonment till rising of Court in addition to a fine of Rs.2,90,000/-
and in default simple imprisonment for three months. On realisation
of fine, Rs.2,85,000/- is to be paid to first respondent as compensation
under section 357(1)(b) of Code of Criminal Procedure.
Revision is allowed in part. Conviction of the revision petitioner
for the offence under section 138 of Negotiable Instruments Act is
confirmed. Sentence is modified. Revision petitioner is sentenced to
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imprisonment till rising of Court and a fine of Rs.2,90,000/- and in
default simple imprisonment for three months. On realisation of fine,
Rs.2,85,000/- to be paid to first respondent as compensation under
section 357(1)(b) of Code of Criminal Procedure. Revision petitioner
is granted six months time to pay the fine. Revision petitioner is
directed to appear before Judicial First Class Magistrate, Kayamkulam
on 20.7.2009.
M. SASIDHARAN NAMBIAR, JUDGE
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