IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3409 of 2008()
1. BENNY PETER, ST. MARY'S ENTERPRISES,
... Petitioner
Vs
1. SUKUMARAN NAIR R.V.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.J.DEVADANAM
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3409 OF 2008
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Dated this the 20th day of October, 2008
O R D E R
Petitioner is the accused in ST 1806 of 2004 on the file of
Judicial First Class Magistrate-I, Kozhikode. First respondent is
the complainant. First respondent lodged the complaint alleging
that petitioner borrowed Rs.1,00,000/- from him on 24.7.2003
and towards its repayment, issued Ext.P1 cheque dated
24.4.2004 drawn in his account maintained in Kambalakad
Branch of Wayanad District Co-operative Bank and when the
cheque was presented, through the account maintained by first
respondent in UTI Bank of YMCA Cross-Road, Calicut, it was
dishonoured under Ext.P2 for insufficient funds and Ext.P5(a)
notice was sent demanding the amount covered by the
dishonoured cheque which was received by petitioner under
Ext.P5(c) postal acknowledgement, but he did not pay the
amount and thereby committed an offence under section 138 of
Negotiable Instruments Act. Petitioner pleaded not guilty.
Learned Magistrate on the evidence of first respondent as PW1
and Exts.P1 to P5 found the petitioner guilty. He was convicted
CRRP 3409/08 2
and sentenced to a fine of Rs.1,10,000/- and in default simple
imprisonment for three months. On realisation of the fine, it was
directed to be paid to first respondent as compensation.
Petitioner challenged the conviction and sentence before
Sessions Court, Kozhikode in Crl. Appeal 423 of 2007. Learned
Additional Sessions Judge on reappreciation of evidence
confirmed the conviction and sentence and dismissed the appeal.
It is challenged in this revision.
2. Learned counsel appearing for petitioner was heard.
3. Learned counsel did not challenge the conviction or
the sentence and only sought three months time to pay the fine.
4. On going through the judgments of the Courts below ,
I do not find any illegality or irregularity in the conviction.
Evidence establish that petitioner borrowed Rs.1,00,000/- and
towards its repayment issued exxt.P1 cheque. It is also proved
that when the cheque was presented for encashment, it was
dishonoured for want of sufficient funds. Evidence also
establish that first respondent has complied with all the
statutory formalities provided under section 138 and 142 of
Negotiable Instruments Act. Conviction of the petitioner for the
offence under section 138 of N.I. Act is perfectly legal and
CRRP 3409/08 3
correct.
5. Then the only question is with regard to sentence.
Courts below sentenced the petitioner only to a fine and that too
only Rs.10,000/- in excess of the amount covered by the
dishonoured cheque with a default sentence of simple
imprisonment for three months. In such circumstances, there is
no illegality or irregularity in the sentence also.
Revision is dismissed. On the request of the learned
counsel for petitioner, petitioner is granted three months time to
pay the fine from today.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-