High Court Kerala High Court

M.D.Thomas vs C.L.Suresh on 3 February, 2009

Kerala High Court
M.D.Thomas vs C.L.Suresh on 3 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 234 of 2009()


1. M.D.THOMAS, REDLAND TEA FACTORY,
                      ...  Petitioner

                        Vs



1. C.L.SURESH, S/O.LEKSHMANAN,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.RAJU K.MATHEWS

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :03/02/2009

 O R D E R
            M.SASIDHARAN NAMBIAR,J.
          ===========================
         Crl.R.P.  NO. 234    OF 2009
          ===========================

    Dated this the 3rd day of February,2009

                     ORDER

Revision petitioner is the accused and

first respondent the complainant in

C.C.1283/2004 on the file of Judicial First

Class Magistrate, Mavelikara. Revision

petitioner was convicted and sentenced for the

offence under section 138 of Negotiable

Instruments Act. Revision petitioner

challenged the conviction before Additional

Sessions Court, Mavelikara in Crl.A.44/2007.

Learned Additional Sessions Judge on

reappreciation of evidence confirmed the

conviction and modified the sentence to simple

imprisonment for three months and a

compensation of Rs.50,000/-. Revision is filed

challenging the conviction and sentence.

2. Learned counsel appearing for revision

CRRP 234/2009 2

petitioner was heard.

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 the sentence may be modified and he

is ready to pay the amount covered by the

dishonoured cheque to first respondent and time may

be granted for payment.

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.2,00,000/- from first respondent and

towards its repayment issued Ext.P1 cheque which

was dishonoured for want of sufficient funds, when

presented for encashment. It is also established

that first respondent had complied with all

statutory formalities provided under section 138

and 142 of Negotiable Instruments Act. In such

circumstance, conviction of the revision petitioner

CRRP 234/2009 3

for the offence under section 138 of Negotiable

Instruments Act is perfectly legal.

6. Then the question is regarding the

sentence. So long as the sentence is not altered

or varied against the interest of first respondent,

it is not necessary to issue notice to first

respondent. As per the sentence modified by

Additional Sessions Judge, first respondent is to

get a compensation of Rs.50,000/- only. Ext.P1

cheque is for Rs.2,00,000/-. Considering the

entire facts and circumstances of the case,

interest of justice will be met if the sentence is

modified to imprisonment till rising of court and a

fine of Rs.2,00,000/- the amount covered by the

dishonoured cheque.

Revision is allowed. Conviction is confirmed.

Sentence is modified. Revision petitioner is

sentenced to imprisonment till rising of court and

in default simple imprisonment for two months. On

realisation of fine, it is to be paid to first

CRRP 234/2009 4

respondent as compensation under section 357(1)(b)

of Code of Criminal Procedure. Revision

petitioner is granted to six months time to pay the

amount. He is permitted to pay the compensation

directly to first respondent and produce the

receipt and satisfy the Magistrate that fine, which

is to be paid on realisation as compensation to

first respondent was paid. Revision petitioner is

directed to appear before the Judicial First Class

Magistrate, Mavelikkara on 3.7.2009.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006