High Court Kerala High Court

P.K.Damodaran vs P.Muhammedkunhi Musliyar on 22 October, 2008

Kerala High Court
P.K.Damodaran vs P.Muhammedkunhi Musliyar on 22 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3436 of 2008()


1. P.K.DAMODARAN,S/O.APPUKUTTAN, PARAKKATTU
                      ...  Petitioner

                        Vs



1. P.MUHAMMEDKUNHI MUSLIYAR,
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY PUBLIC

                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :22/10/2008

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
           Crl.R.P. NO.3436     OF 2008
            ===========================

      Dated this the 22nd day of October,2008

                       ORDER

Petitioner is the accused and first respondent

the complainant in C.C.62/2005 on the file of

Judicial First Class Magistrate II (Forest

Offences), Manjeri. First respondent lodged the

complaint contending that petitioner borrowed

Rs.50,000/- and towards its repayment issued Ext.P1

cheque drawn in his account maintained in Wynad

District Co-operative Bank, Panamaram Branch and

when the cheque was presented it was dishonoured

for want of sufficient funds under Ext.P2 and

Ext.P4 notice was sent demanding the amount. But

petitioner failed to pay the amount and thereby

committed the offence under section 138 of

Negotiable Instruments Act. Petitioner pleaded not

guilty. First respondent was examined as PW1.

Exts.P1 to P4 were marked. On the side of the

petitioner no evidence was adduced. Learned

CRRP 3436/2008 2

Magistrate on the evidence found the petitioner

guilty. He was convicted and sentenced to simple

imprisonment for three months and a compensation of

Rs.50,000/- and in default simple imprisonment for

two months for the offence under section 138 of

Negotiable Instruments Act. Petitioner challenged

the conviction and sentence before Sessions Court,

Manjeri in Crl.A.93/2007. Learned Sessions Judge

on reappreciation of evidence confirmed the

conviction but modified the sentence to

imprisonment till rising of the court and a

compensation of Rs.50,000/- with a default sentence

of simple imprisonment for three months. It is

challenged in this revision.

2. Learned counsel appearing for the

petitioner was heard.

3. The argument of the learned counsel

appearing for petitioner is that courts below did

not properly appreciate the evidence and on the

evidence it should have been found that petitioner

had paid the entire amount due to first respondent.

CRRP 3436/2008 3

It was argued that though assistance of a defence

counsel was provided to the petitioner, because of

difference of opinion he did not contest the case

and therefore necessary evidence could not be

adduced and hence the conviction and sentence is

not sustainable. Learned counsel finally submitted

that petitioner may be granted four months time to

pay the amount as directed by the Sessions Court.

4. On going through the judgment of the courts

below, I do not find any reason to interfere with

the conviction. Evidence establish that Ext.P1

cheque was issued towards repayment of the amount

borrowed. Though petitioner contended that the

entire amount due to first respondent was paid and

therefore no liability exists, no evidence was

adduced to prove the alleged discharge. Even

petitioner was not examined to prove the

discharge. In such circumstance, courts below

rightly rejected the claim of discharge. Evidence

establish that Ext.P1 cheque was dishonoured for

want of sufficient funds. Evidence also prove that

CRRP 3436/2008 4

first respondent has complied with all statutory

formalities provided under section 138 ad 142 of

Negotiable Instruments Act. The conviction of the

petitioner for the offence under section 138 of

N.I. Act is perfectly legal.

5. Then the only question is with regard to

the sentence. Learned Sessions Judge modified the

sentence to imprisonment till rising of the court

in addition to compensation with a default

sentence. In view of the decision of the Apex

Court that when compensation is awarded under

section 357(3) of Code of Criminal Procedure, there

cannot be a default sentence, sentence to that

extent is illegal. But that defect could be cured

by modifying the sentence to fine instead of

compensation.

The revision is partly allowed. The conviction

for the offence under section 138 of N.I. Act is

confirmed. Sentence is modified to imprisonment

till rising of the court and a fine of Rs.50,000/-

to be paid within four months from today and in

CRRP 3436/2008 5

default simple imprisonment for one month. On

realisation of the fine it is to be paid to first

respondent as compensation under section 357(1) of

the Code of Criminal Procedure. Petitioner is

directed to appear before the Magistrate on the

expiry of four months from today.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006