IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3450 of 2008()
1. JOSE.P.C., S/O.CHACKO, AGED 48 YEARS,
... Petitioner
Vs
1. JOJO JOSEPH, PUNNACKAPALLIL HOUSE,
... Respondent
2. THE STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.MANUEL KACHIRAMATTAM
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3450 OF 2008
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Dated this the 23rd day of October, 2008
O R D E R
Petitioner is the accused and first respondent the
complainant in C.C.1282 of 2004 on the file of Judicial First
Class Magistrate-II,Kottayam. Case of the first respondent was
that petitioner borrowed Rs.1,00,000/- and towards its
repayment issued Ext.P1 cheque dated 23.7.2004 drawn in his
account and when the cheque was presented for encashment, it
was dishonoured under Ext.P2. In spite of Ext.P4 notice served
on the petitioner under Ext.P6 demanding the amount covered
under Ext.P1, petitioner did not pay the amount and thereby
committed an offence under section 138 of Negotiable
Instruments Act. Petitioner pleaded not guilty. On the evidence
of first respondent as PW1, Ext.P1 to P6 and petitioner as DW1
and Ext.D1, learned Magistrate found the petitioner guilty. He
was convicted and sentenced to simple imprisonment for five
months and a compensation of Rs.1,00,000/- and in default
simple imprisonment for five months under section 357(3) of
Cr.P.C. Petitioner challenged the conviction and sentence
CRRP 3450/08 2
before Sessions Court, Kottayam in Crl.Appeal 118 of 2007.
Learned Sessions Judge on reappreciation of evidence confirmed
the conviction but modified the sentence to imprisonment till
rising of the Court and a fine of Rs.1,00,000/- and in default
simple imprisonment for three months. It is challenged in the
revision.
2. Learned counsel appearing for petitioner was heard.
3. Learned counsel submitted that petitioner may be
granted time to pay the fine because of his financial conditions.
4. Learned Magistrate and the learned Sessions Judge
appreciated the evidence of PW1 the first respondent in the light
of the evidence of petitioner as DW1 and found that Ext.P1
cheque was issued towards repayment of the amount borrowed.
I find no reason to interfere with that finding of fact. It is also
proved that Ext.P1cheque was dishonoured for want of sufficient
funds. That fact was not disputed. There is also no case that
first respondent has not complied with the statutory formalities
provided under section 138 and 142 of N.I. Act. Conviction of
the petitioner for the offence under section 138 is perfectly
legal.
5. Then the only question is with regard to sentence.
CRRP 3450/08 3
Learned Sessions Judge modified the sentence to imprisonment
till rising of the Court and a fine which is only for the amount
covered under Ext.P1 cheque. In such circumstances I find no
illegality in the sentence warranting interference.
Revision is dismissed. On the request of the learned
counsel appearing for petitioner, petitioner is granted three
months time from today to pay the fine. Petitioner is directed to
appear before Judicial First Class Magistrate, Kottayam on the
expiry of three months from today.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-