IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4145 of 2008()
1. BALAKESAVA MENON,
... Petitioner
Vs
1. POOKKOTTIL BALAN,
... Respondent
2. STATE OF KERALA,REP.BY THE PUBLIC
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO. 4145 OF 2008
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Dated this the 30th day of January,2009
ORDER
Revision petitioner is the accused and
first respondent the complainant in
C.C.251/2005 on the file of Judicial First
Class Magistrate-I, Manjeri. Revision
petitioner was convicted and sentenced for the
offence under section 138 of Negotiable
Instruments Act. Conviction was challenged
before Additional Sessions Court, Manjeri in
Crl.A.23/2007. Learned Additional Sessions
Judge on reappreciation of evidence confirmed
the conviction and modified the sentence to
imprisonment till rising of court and a
compensation of Rs.1,00,000/- with a default
sentence of simple imprisonment for three
months. Revision is filed challenging the
conviction and sentence.
CRRP 4145/2008 2
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
submitted that revision petitioner is not
challenging the conviction but revision petitioner
may be granted time to pay the amount. It was also
submitted that when compensation is awarded under
section 357(3) of Code of Criminal Procedure, there
cannot be a default sentence and to that extent the
sentence is to 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.1,00,000/- from first
respondent and towards its repayment issued Ext.P1
cheque which was dishonoured for encashment. It is
also established that first respondent had complied
with all statutory formalities provided under
section 138 and 142 of Negotiable Instruments Act.
CRRP 4145/2008 3
In such circumstance, conviction of the revision
petitioner for the offence under section 138 of
Negotiable Instruments Act is perfectly legal.
5. Then the question is regarding the
sentence. Learned Sessions Judge modified the
sentence to imprisonment till rising of court and
compensation which was only for the amount covered
by the dishonoured cheque. In such circumstance, I
find no reason to interfere with the sentence. But
as rightly pointed out by the learned counsel
appearing for revision petitioner when compensation
is awarded under sub section (3) of Section 357 of
Code of Criminal Procedure, there cannot be a
default sentence. To that extent the sentence is
illegal. Therefore the direction of the learned
Sessions Judge for default sentence for the payment
of compensation is set aside.
Criminal Revision Petition is disposed
accordingly. Revision petitioner is granted four
months time to pay the amount. He is directed to
CRRP 4145/2008 4
appear before the Judicial First Class Magistrate,
Manjeri on 1.6.2009.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006