IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 512 of 2007(E)
1. M.M.ABDUL SHUKKUR
... Petitioner
Vs
1. RAJESH KUMAR MEHTHA
... Respondent
For Petitioner :SRI.V.SETHUNATH
For Respondent :SRI.MVS.NAMBOOTHIRY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 512 OF 2007
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Dated this the 24th day of October, 2008
O R D E R
Petitioner was concurrently convicted and sentenced for
the offence under section 138 of Negotiable Instruments Act.
First respondent is the complainant. Ext.P2 to P8 cheques were
admittedly issued by petitioner to the first respondent towards
value of the articles purchased from the first respondent. They
were dishonoured when presented under Ext.P9 series of
dishonour memos. Ext.P10 notice was sent demanding the
amount covered by the dishonoured cheques and admittedly
petitioner did not pay the amount. In such circumstances
petitioner cannot dispute the fact that he committed the offence
under section 138 of N.I. Act. In fact this aspect is not in
dispute. Revision is filed challenging only the sentence. Case of
the petitioner is that when the trial was in progress there was a
talk of settlement between the counsel appearing on both sides
and for the amount covered by Exts.P2 to P8 cheques,
Rs.25,000/- inclusive of interest and cost was agreed to be paid
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and petitioner paid that amount through the counsel and though
payment of Rs.25,000/- was received, later first respondent
contended that the said payment was not towards the
dishonoured cheques, but to other transactions. When first
respondent was examined as PW1, he took up this stand. As the
original counsel who was appearing for first respondent
relinquished the vakalath, he was examined on the side of
defence as DW1. DW1 deposed that he received Rs.25,000/- as
paid by the petitioner through his counsel. But he deposed that
according to first respondent it is not in respect of the
transaction covered under Exts.P2 to P8 cheques. Learned
Magistrate and learned Sessions Judge accepted that
explanation and convicted and sentenced the petitioner.
Learned Chief Judicial Magistrate sentenced petitioner to a fine
of Rs.25,000/- and in default simple imprisonment for three
months. Learned Sessions Judge confirmed the same.
2. The only question is whether the sentence is to be
modified. Though learned counsel appearing for first
respondent argued that Rs.25,000/- received by first respondent
during the pendency of the case do not relate to the transaction
covered under Exts.P2 to P8 cheques and when petitioner was
CRRP512/08 3
examined Exts.P15 to P17 invoices were shown to him to prove
that there were other transactions, they relate to transactions
prior to the issuance of Exts.P2 to P8 cheques. It was argued by
first respondent that petitioner as DW2 attempted to wriggle out
when Exts.P15 to 17 were shown and deposed that he cannot
say whether those articles were received by him. It was argued
that hence the payment proved by evidence of DW1 is not in
respect of amount covered by Exts.P2 to P8 cheques but other
transactions. First of all the question whether the said payment
is towards the cheque covered by the dishonoured cheques or
towards other transaction is not to be decided in this case. But
while considering reasonableness of the sentence that question
assumes importance. If Exts.P15 to P17 relate to the transaction
after issuance of Exts.P2 to P8 cheques, submission of the
learned counsel appearing for first respondent could have been
accepted. It is seen that Ext.P15 to P17 that they are the
invoices for the period 1993-1994, when Exts.P2 to P8 cheques
were issued during the period February 1996 to March 2006.
Therefore it is not possible to believe the explanation that when
the sword of prosecution was hanging over the head of the
petitioner, he would pay the amount in respect of other
CRRP512/08 4
transactions and that too through the counsel appearing for the
first respondent in this case. In such circumstances interest of
justice warrants modification of sentence.
Revision is allowed in part. While confirming the
conviction for the offence under section 138, the sentence as
awarded by learned Magistrate and confirmed by learned
Sessions Judge is confirmed. The sentence is modified to a fine
of Rs.2000/- and in default simple imprisonment for one month.
The direction to pay compensation under section 357(1) of
Cr.P.C. is set aside. If petitioner has deposited any amount
before the learned Magistrate as directed by this Court, he is
entitled to withdraw the same less the fine.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-