IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3551 of 2008()
1. LAILA SHARAF, W/O. SHARAF,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. K. SHIBU,
For Petitioner :SRI.DILEEP P.PILLAI
For Respondent :SRI.K.SUBASH CHANDRA BOSE
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/01/2009
O R D E R
M. SASIDHARAN NAMBIAR, JUDGE
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CRL.R.P.NO. 3551 OF 2008
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Dated this the 2 nd day of January, 2009
O R D E R
Revision petitioner is the accused and second respondent
the complainant in C.C. 2185 of 2002 on the file of Judicial First Class
Magistrate-I, Kollam. Revision petitioner was convicted and
sentenced to simple imprisonment for six months and a compensation
of Rs.2,50,000/- for the offence under section 138 of Negotiable
Instruments Act. Revision petitioner challenged the conviction before
Sessions Court, Kollam in Crl. Appeal 342 of 2006. 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.
3. Learned counsel submitted that in view of the concurrent
findings of fact revision petitioner is not challenging the conviction,
but the sentence may be modified and time may be granted to pay the
amount to second respondent.
4. On hearing the learned counsel and going through the
judgments of the Courts below, I find no reason to interfere with the
CRRP 3551/2008 2
conviction. Evidence establish that revision petitioner borrowed
Rs.2,50,000/- from second respondent on 1.8.2001 and issued Ext.P1
cheque dated 16.9.2001, drawn in his account, maintained in
Kadappakkada branch of Central Bank of India and the cheque when
presented for encashment was dishonoured for want of sufficient
funds. Evidence also establish that second respondent had complied
with the statutory formalities provided under section 138 and 142 of
Negotiable Instruments Act. Conviction of revision petitioner for the
offence under section 138 of N.I. Act is perfectly legal.
5. Then the question is regarding the sentence. Learned
Magistrate awarded a substantive sentence of simple imprisonment
for six months, in addition to a compensation of Rs.2,50,000/- with a
default sentence of simple imprisonment for two months. Sessions
Judge confirmed it. So long as the sentence is not varied or modified
against the interest of second respondent, it is not necessary to issue
notice to second respondent. Considering the entire facts and
circumstances of the case, interst of justice will be met if the
substantive sentence is reduced to imprisonment till rising of court
and a fine of Rs.2,60,000/- and in default simple imprisonment for
three months providing that on realisation of fine Rs.2,50,000/- is to
be paid to second respondent as compensation under section 357(1) of
Code of Criminal Procedure.
CRRP 3551/2008 3
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.2,60,000/- and in
default simple imprisonment for three months. On realisation of fine,
Rs.2,50,000/- is to be paid to second respondent as compensation
under section 357(1) of Cr.P.C. Revision petitioner is granted two
months time to pay the fine. Revision petitioner is directed to appear
before the Magistrate on 3.3.2009.
M. SASIDHARAN NAMBIAR, JUDGE
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