IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4114 of 2008()
1. K.V.VARGHESE, 40 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
2. C.N.ACCHYA, S/O.MONNAIAH, R/AT.CHAKKARAM
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO. 4114 OF 2008
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Dated this the 27th day of January,2009
ORDER
Revision petitioner is the accused and
second respondent the complainant in
S.T.447/2006 on the file of Judicial First
Class Magistrate Court II, Sulthan Bathery.
Revision petitioner was convicted and sentenced
to simple imprisonment for six months and a
compensation of Rs.75,000/- and in default
simple imprisonment for two months. Revision
petitioner is challenging the conviction and
sentence before Additional Sessions Court,
Kalpetta in Crl.A.124/2007. Learned Additional
Sessions Judge on reappreciation of evidence
confirmed the conviction and sentence and
dismissed the appeal. It is challenged in the
revision.
2. Learned counsel appearing for the
revision petitioner was heard.
CRRP 4114/2008 2
3. Learned counsel submitted that in view of
the evidence on record and the concurrent findings
of fact revision petitioner is not challenging the
conviction but sentence may be modified and
revision petitioner may be granted six months time
to pay the compensation.
4. On going through the judgments of the
courts below, I find no reason to interfere with
the conviction.
5. Evidence establish that revision petitioner
borrowed Rs.70,000/- and towards its repayment
issued Ext.P1 cheque which was dishonoured for
want of sufficient funds when presented for
encashment. It was also established that second
respondent had complied with all the statutory
formalities provided under section 138 and 142 of
Negotiable Instruments Act. In such circumstance,
conviction of the revision petitioner for the
offence under section 138 of Negotiable Instruments
Act is perfectly legal.
CRRP 4114/2008 3
6. Then the only question is regarding the
sentence. So long as the sentence is not altered
or varied against the interest of second
respondent, it is not necessary to issue notice to
second respondent. As per the sentence awarded by
the Magistrate as confirmed by learned Sessions
Judge second respondent is to get a compensation of
Rs.75,000/-. Ext.P1 cheque is for Rs.70,000/-. In
such circumstance, considering the entire facts and
circumstance of the case, interest of justice will
be met if the sentence is modified to imprisonment
till rising of court and fine with a direction to
pay compenstion out of the fine so realised.
Revision is allowed in part. Conviction of the
revision petitioner for the offence under section
138 of Negotiable Instruments Act is confirmed.
Sentence is modified. Revision petitioner is
sentenced to imprisonment till rising of court and
a fine of Rs.76,000/- and in default simple
imprisonment for two months. On realisation of
CRRP 4114/2008 4
fine, Rs.75,000/- to be paid to second respondent
as compensation under section 357(1)(b) of the Code
of Criminal Procedure. Revision petitioner is
granted six months time to pay the fine. Revision
petitioner is directed to appear before the
Judicial First Class Magistrate, Sulthan Bathery on
27.7.2009.
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