Vazhayil Hashim vs P. Indira on 13 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 138 of 2009()


1. VAZHAYIL HASHIM, AGED 58 YEARS,
                      ...  Petitioner

                        Vs



1. P. INDIRA,
                       ...       Respondent

2. STATE OF EKRALA, REPRESENTED BY

                For Petitioner  :SRI.P.U.SHAILAJAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :13/01/2009

 O R D E R
                     M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                    CRL.R.P.NO. 138 OF 2009
                     ............................................
        DATED THIS THE 13th DAY OF JANUARY, 2009

                                    ORDER

Revision petitioner is the accused and first respondent, the

complainant in C.C.523 of 2002 on the file of Judicial First Class

Magistrate-I, Kannur. Revision petitioner was convicted for the

offence under Section 138 of N.I.Act. Revision petitioner challenged

the conviction before Sessions Court, Thalassery in Crl.A.167 of 2004.

Learned Sessions Judge, on reappreciation of evidence, confirmed the

conviction and dismissed the appeal. It is challenged in this revision

petition.

2. Learned counsel appearing for revision petitioner was heard.

Learned counsel submitted that in view of the concurrent findings of

the courts below and the evidence on record, revision petitioner is not

challenging the conviction and is only seeking modification of the

sentence and six months time to pay the fine.

3. On going through the judgments of courts below, I do not

find any reason to interfere with the conviction. Evidence establish

that revision petitioner borrowed Rs.92,000/- from first respondent

and towards its repayment, issued Ext.P1 cheque for Rs.92,000/-,

which was dishonoured when presented for encashment for want of

sufficient funds and first respondent had complied with all the

statutory formalities provided under Section 138 and 142 of N.I.Act.

CRL.R.P.NO. 138 OF 2009
2

Conviction of petitioner for the offence under Section 138 of N.I.Act is

perfectly legal.

4. Then the question is with regard to the sentence. Learned

Magistrate sentenced the revision petitioner to simple imprisonment

for one year and a compensation of Rs.1,00,000/- with a default

sentence of three months. Learned Sessions Judge confirmed the

sentence. So long as sentence is not varied or modified against the

interest of first respondent, it is not necessary to issue notice to first

respondent. 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 with a direction

to pay the fine to first respondent as compensation.

5. Revision petition is allowed in part. Conviction of revision

petitioner for the offence under Section 138 of N.I.Act is confirmed.

Sentence is modified. Revision petitioner is sentenced to

imprisonment till rising of court and a fine of Rs.1,00,000/- 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

four months time from today to pay the fine. He is directed to appear

CRL.R.P.NO. 138 OF 2009
3

before the Magistrate on 13.5.2009.

M.SASIDHARAN NAMBIAR, JUDGE

lgk