IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3189 of 2005()
1. P.JAYARAM,
... Petitioner
Vs
1. K.GOPALAN, S/O.IMBICHIKUTTAN,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/11/2008
O R D E R
M.N.KRISHNAN, J.
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Crl.R.P. No. 3189 OF 2005
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Dated this the 3rd day of November, 2008
ORDER
This revision petition is preferred against the judgment in
Crl. Appeal 531/04 of Sessions Judge, Kozhikode. It was an appeal
preferred against S.T. 377/04 of the Special Judaical First Class
Magistrate, Kozhikode, whereby the learned Magistrate convicted the
accused under section 138 of the Negotiable Instruments Act and
directed him to undergo simple imprisonment for six months and also
to pay a compensation of Rs.89,000/-. In appeal, the learned
Sessions Judge modified the sentence of imprisonment by reducing
it from six months to two months. It is against that decision, the
criminal revision petition is preferred.
2. I have heard the learned counsel for the revision petitioner
and also perused the judgments of both the courts below. Ext.P1 is
the cheque said to have been issued for discharging the liability. It
was dishonoured and that was followed by initiation of prosecution
under section 138 of the Negotiable Instruments Act. Evidence has
been tendered that the amount was borrowed and cheque has been
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issued. Both the courts below, on appraisal of the evidence, had
arrived at the decision regarding the execution of the cheque and
that it was issued for discharging the liability. It also held that the
presumptions under sections 118 and 139 of the Negotiable
Instruments Act remained unrebutted. Therefore, there is no
illegality, irregularity or perversity or misappreciation of evidence to
arrive at a decision regarding the offence. So, I confirm the sentence
under section 138 of the Negotiable Instruments Act.
3. Learned counsel for the revision petitioner then submits that
there has not been a deliberate act and it was the circumstances
beyond control that have led to the delay in making payment and
therefore prays for some leniency. I feel the said request requires
consideration. Interest of justice can be met by awarding nominal
imprisonment with a further direction to pay the fine which on
realisation can be given to the complainant. Therefore the revision
petition is disposed of as follows:
(i) The conviction under section 138 of the Negotiable
Instruments Act is confirmed.
(ii) The revision petitioner is directed to undergo imprisonment
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for a day, i.e., till the rising of the court, and to pay the fine of
Rs.89,000/- which on realisation can be given to the complainant. If
the fine amount is not paid, the revision petitioner has to undergo
simple imprisonment for a period of two months.
(iii) The revision petitioner shall appear before the court below
on 2.2.2009 to receive the sentence and for payment of fine. If the
petitioner commits default, the trial court is directed to execute the
sentence. The amount, if any, in deposit shall be treated as part of
fine and it can be disbursed to the complainant.
M.N.KRISHNAN, JUDGE
vps
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