IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3338 of 2008()
1. M.RAGHAVAN, S/O NARAYANAN NAMBIAR,
... Petitioner
Vs
1. NARAYANAN NAIR, S/O KELU NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.P.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3338 OF 2008
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Dated this the 7th day of October, 2008
O R D E R
Petitioner was concurrently convicted and sentenced for
offence under section 138 of Negotiable Instruments Act. First
respondent is the complainant. Case of the first respondent is
that towards repayment of Rs.1,50,000/-, which was borrowed by
the petitioner, Ext.P1 cheque drawn in his account maintained in
Perambra branch of State Bank of India was issued and when it
was presented for encashment, it was dishonoured for want of
sufficient funds under Ext.P2 and under Ext.P3 notice served on
the petitioner under Ext.P5 acknowledgement card, the amount
covered under Ext.P1 cheque was demanded. Petitioner failed
to pay the amount and thereby committed the offence.
Petitioner pleaded not guilty.
2. Learned First Class Magistrate, Perambra on the
evidence of PW1 and Exts. P1 to P5 found petitioner guilty. He
was convicted and sentenced to simple imprisonment for six
months and a compensation of Rs.1,50,000/- and in default
CRRP 3338/08 2
simple imprisonment for three months for the offence under
section 138 of Negotiable Instruments Act. Petitioner
challenged the conviction and sentence before Sessions Court,
Kozhikode in Crl. Appeal 545 of 2007. Learned Additional
Sessions Judge on reappreciation of evidence confirmed the
conviction and sentence and dismissed the appeal. It is
challenged in this revision petition.
3. Learned counsel appearing for petitioner was heard.
4. Learned counsel submitted that petitioner is not
challenging the conviction, but only the sentence and it may be
modified and petitioner may be granted four months time to pay
the amount covered by the dishonoured cheque. So long as the
sentence is not to be varied or modified against the interest of
first respondent, it is not necessary to issue notice to him.
5. Learned Magistrate and learned Sessions Judge on
the evidence of PW1 found that petitioner had borrowed
Rs.1,50,000/- from first respondent and issued Ext.P1 cheque
drawn in his account, towards its repayment and when it was
presented for encashment it was dishonoured for want of
sufficient funds. I find no reason to interfere with the finding of
the Courts below as it is in accordance with the evidence.
CRRP 3338/08 3
Evidence also establish that first respondent has complied with
all the statutory formalities provided under sections 138 and
142 of Negotiable Instruments Act. Conviction of the petitioner
for the offence under section 138 of Negotiable Instruments Act
is therefore perfectly legal and correct.
6. Then the only question is with regard to the sentence.
The learned Magistrate sentenced petitioner to simple
imprisonment for six months in addition to a compensation
which was the amount covered by the cheque with a default
sentence. In view of the declaration of law by the Apex Court,
default sentence cannot be part of the compensation awarded
under section 357(3) of Code of Criminal Procedure. Therefore
to that extent the sentence is to be modified. From the facts and
circumstances of the case, interest of justice will be met if the
sentence is modified to imprisonment till rising of the Court in
addition to a fine of Rs.1,60,000/- with a default sentence of
simple imprisonment for three months with a direction to pay a
compensation of Rs.1,52,000/- to the first respondent, on
realisation of the fine under section 357(1) of Cr.P.C.
The revision is allowed in part. Conviction of the
petitioner for the offence under section 138 of N.I. Act is
CRRP 3338/08 4
confirmed. The sentence is modified as follows:- Petitioner is
sentenced to imprisonment till rising of the Court and a fine of
Rs.1,60,000/- to be paid within four months from today and in
default simple imprisonment for three months. On realisation of
the fine, Rs.1,52,000/- is to be paid to first respondent as
compensation under section 357(1) of Cr.P.C. Petitioner is
directed to appear before the Magistrate on the expiry of four
months from today.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-