IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3326 of 2008()
1. JAYACHANDRAN NAIR, PRESIDENT, NO.412,
... Petitioner
2. C.VIJAYAKUMAR, SECRETARY,
3. TAXI DRIVER.S CO-OPERATIVE SOCIETY
Vs
1. P.M. ABDUL AZEEZ, GREEN VIEW,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.RAJESH P.NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3326 OF 2008
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Dated this the 24th day of November, 2008
O R D E R
Revision petitioners are the accused in C.C. 151 of 2002
on the file of Judicial First Class Magistrate,
Thiruvananthapuram. First respondent is the complainant.
Petitioners were convicted and sentenced for the offence under
section 138 of Negotiable Instruments Act. Petitioners
challenged the conviction and sentence before Additional
Sessions Court, Thiruvananthapuram in Crl. Appeal 479 of 2004.
Learned Additional Sessions Judge on reappreciation of evidence
confirmed the conviction but modified the sentence to
imprisonment till rising of Court as against petitioners 1 and 2 in
addition to a fine of Rs.1,15,000/- as against petitioners 1 to 3.
The conviction and sentence is challenged in this revision.
2. Third petitioner is Taxi Driver’s Co-operative Society
and petitioners 1 and 2 are respectively its President and
Secretary. Case of first respondent was that in order to
discharge the liability to first respondent under the money
deposit scheme as well as arrears of rent Ext.P1 cheque for
CRRP3326/08 2
Rs.1,05,330/- drawn in the account of third petitioner in
Thiruvananthapuram District Co-operative Bank was issued by
petitioners 1 and 2 as the President and Secretary of the
Society. The cheque was dishonoured for want of sufficient
funds under Ext.P2. In spite of Ext.P3 notice received by
petitioners under Ext.P5, the amount was not paid and they
thereby committed the offence under section 138 of Negotiable
Instruments Act. The petitioners had no consistent case. The
case spoken to by the second petitioner when examined as DW1
was that a cheque for Rs.80,000/- was given to the first
respondent as balance of advance amount and later it was stated
that it was a blank cheque. The learned Magistrate on the
evidence found that Ext.P1 cheque was issued in discharge of
the liability due to first respondent under the money deposit
scheme as well as arrears of rent. Learned Magistrate accepting
the evidence of PW1 and disbelieving the evidence of DW1 found
that Ext.P1 cheque was issued towards discharge of the
outstanding liability. Learned Sessions Judge on reappreciation
of evidence confirmed the same. Though in the revision, said
findings were challenged, learned counsel submitted that
petitioners are not challenging the conviction, but sentence may
CRRP3326/08 3
be modified and time may be granted to pay the fine. So long as
the sentence is not modified or varied as against the interest of
first respondent, it is not necessary to issue notice to first
respondent.
3. On going through the judgments of the Courts below,
I find no reason to interfere with the factual findings. It is
proved that Ext.P1 cheque was issued towards discharge of the
existing liability and it was dishonoured for want of sufficient
funds and first respondent complied with all the statutory
formalities provided under section 138 and 142 of N.I. Act.
Ext.P1 cheque was issued by petitioners 1 and 2 in discharge of
the liability of the third petitioner. Therefore Courts below
rightly convicted all the petitioners for the offence under section
138 of N.I. Act. It is perfectly legal.
4. Then the only question is regarding the sentence.
Learned Sessions Judge modified the sentence to imprisonment
till rising of Court as against petitioners 1 and 2 in addition to a
fine of Rs.1,15,000/- as against petitioners 1 to 3 with a direction
to pay compensation of Rs.1,10,000/-, out of the fine realised to
first respondent. I find no reason to interfere with the sentence
of imprisonment till rising of Court as against the petitioners 1
CRRP3326/08 4
and 2. As Ext.P1 cheque is only for Rs.1,05,330/- interest of
justice will be met if the sentence of fine is modified to
Rs.55,000/- each as against petitioners 1 and 2 and in default
simple imprisonment for two months and a fine of Rs.10,000/- as
against the third petitioner.
Revision is allowed in part. Conviction of the petitioners
for the offence under section 138 of Negotiable Instruments Act
is confirmed. Sentence is modified as follows. Petitioners 1 and
2 are sentenced to imprisonment till rising of Court and a fine of
Rs.55,000/- each and in default simple imprisonment for two
months each. Third petitioner is sentenced to a fine of
Rs.10,000/-. On realisation of fine Rs.1,10,000/- is to be paid to
first respondent as compensation under section 357 (1) of
Cr.P.C. Petitioners are granted two months time, from today, to
pay the fine. Petitioners 1 and 2 are directed to appear before
Chief Judicial Magistrate on 27.1.2009.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-