IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3217 of 2008()
1. MADHU SEBASTIAN, AGED 33,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY DIRECTOR
... Respondent
2. K.P.JAMES, S/O.POULOSE,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/09/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3217 OF 2008
............................................
DATED THIS THE 19th DAY OF SEPTEMBER, 2008
ORDER
Petitioner was concurrently convicted and sentenced for an
offence under Section 138 of Negotiable Instruments Act(in short,
`N.I Act’). Second respondent is the complainant. Case of first
respondent is that towards the discharge of the existing liability of
Rs.3,50,000/-, petitioner issued Ext.P2 cheque drawn in his account
maintained in Sultan Bathery Branch of Catholic Syrian Bank on
20.1.2005 and when the cheque was presented through the account of
first respondent maintained in Kozhikode Branch of Syndicate Bank, it
was dishonoured for want of sufficient funds and first respondent sent
Ext.P4(a) notice demanding the amount covered by the cheque which
served on the petitioner under Ext.P4 and petitioner did not pay the
amount and thereby committed the offence under Section 138 of
N.I.Act. Petitioner pleaded not guilty.
2. Learned Magistrate, on the evidence of PW1, the brother of
petitioner and Exts.P1 to P6 and D1 to D3 found that Ext.P2 cheque
was issued towards discharge of the existing liability and it was
dishonoured for want of sufficient funds and first respondent has
complied with all the statutory formalities and convicted petitioner for
the offence under Section 138 of N.I.Act. He was sentenced to
CRRP 3217/2008 2
undergo simple imprisonment for six months and a compensation of
Rs.3,50,000/- under Section 357(3) of Code of Criminal Procedure.
Petitioner challenged the conviction and sentence before Sessions
Court, Kalpetta in Crl.A.252 of 2006. Learned 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. The
argument of learned counsel is that courts below were not justified in
accepting the evidence of PW1 and rejecting the evidence of DW1 and
it should have been found that Ext.P12 cheque was not issued towards
discharge of the any liability and therefore the conviction is not
sustainable. Learned counsel also argued that in any case, sentence
awarded is excessive and sentence may be converted into fine and
time may be granted to pay the fine.
4. Ext.P2 cheque was admittedly issued in the account
maintained by the petitioner in Catholic Syrian Bank. Though
petitioner contended that the cheque was not issued towards
discharge of an existing liability, learned Magistrate and learned
Sessions Judge, on appreciation of evidence found that the issuance of
cheque was not disputed and evidence of PW1 establish that there
was an agreement between petitioner and first respondent in respect
of which O.S.95 of 2004 was instituted which was settled for
CRRP 3217/2008 3
Rs.7,50,000/- and Rs.4,00,000/- was paid in cash and for the balance
of Rs.3,50,000/-, Ext.P2 cheque was issued. Learned Magistrate and
learned Sessions Judge appreciated the evidence in the proper
perspective. I do not find any reason to interfere with the finding of
fact that Ext.P2 cheque was issued towards the payment of
Rs.3,50,000/-, which was the balance amount due under the
settlement arrived at for settlement of the dispute involved in O.S.95
of 2004. Evidence also establish that cheque was dishonoured for
want of sufficient funds and first respondent had complied with all the
statutory formalities. Therefore conviction of petitioner for the
offences under Section 138 of N.I.Act is perfectly correct.
5. Then the only question is with regard to the sentence.
Learned Magistrate sentenced petitioner to simple imprisonment for
six months in addition to a compensation of Rs.3,50,000/-. So long as
compensation payable to first respondent is not to be interfered, it is
not necessary to issue notice to first respondent. Therefore notice to
first respondent is dispensed with.
6. Section 138 of N.I Act provides for a sentence of
imprisonment for two years and fine, which may extend to double the
amount covered by the cheque. It is not mandatory that in all cases,
substantive sentence is to be awarded. In the circumstances of the
case, interest of justice will be met, if the sentence is modified to
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imprisonment till rising of court and a fine of Rs.3,70,000/-. On
realisation of the fine amount, Rs.3,60,000/- is to be paid as
compensation to first respondent.
7. Revision is therefore allowed in part. While confirming the
conviction for offence under Section 138 of N.I.Act, the sentence is
modified to imprisonment till rising of court and a fine of
Rs.3,70,000/- and in default, simple imprisonment for two months.
On realisation of the fine amount, Rs.3,60,000/- is to be paid to first
respondent as compensation under Section 357(1) of Code of
Criminal Procedure. Petitioner is directed to appear before learned
Magistrate on 16.12.2008. If petitioner had deposited any amount
before learned Magistrate, he need deposit only the balance amount.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-