IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 341 of 2000()
1. MAIDEENKUTTY
... Petitioner
Vs
1. DAVID
... Respondent
For Petitioner :SRI.N.J.JOHNSON
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :26/08/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 341 of 2000
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Dated this the ...th day of August, 2009
O R D E R
This revision petition is filed by the accused in
S.T.No. 3606 of 1995 on the file of the J.F.C.M.,
Kunnamkulam. The first respondent herein is the
complainant in that case. S.T. 3606 of 1995 is a case
based upon a private complaint filed against the accused
under Section 138 of the N.I. Act.
2. The facts of the case are briefly as follows: The
complainant and accused are friends. On 2.4.1992, the
accused borrowed Rs.40,000/- from the complainant and
the accused issued a cheque for that amount dt.15.4.1992
in discharge of that liability. When the complainant
presented that cheque for encashment, it was dishonoured
due to insufficiency of funds. The complainant issued
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2
lawyer notice to the accused intimating the dishonour of the
cheque and demanded back the amount. But the accused failed
to pay the amount covered by the cheque. Hence the complaint.
3. In the Magistrate Court, Pws. 1 to 4 were examined and
Exts.P1 to P8 were marked on the side of the complainant. No
evidence was adduced from the defence side. The learned
Magistrate, on considering the evidence, found that the accused
has committed an offence punishable under Section 138 of the
N.I. Act and he was convicted and sentenced to undergo S.I. for
a period of three months. The appeal filed by the accused as
Crl.A. No. 72 of 1998 before the Sessions Court, Trichur was
dismissed confirming the conviction and sentence. Against that
judgment, the accused filed this revision petition.
4. Heard the learned counsel for the revision petitioner
and the learned counsel for the first respondent.
5. The learned counsel for the revision petitioner
submitted that the revision petitioner is not challenging the
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conviction of the accused under Section 138 of the N.I. Act and
that the only prayer is to reduce the sentence, as the petitioner
has already paid the entire amount to the complainant. The
learned counsel for the first respondent/complainant submitted
that the complainant has already received the entire amount from
the accused.
6. The learned Magistrate and the learned Sessions Judge,
based on the evidence adduced by the complainant, concurrently
found that the accused has committed an offence punishable
under Section 138 of the N.I. Act. Since that finding is based on
evidence on record, I find no reason to interfere with the
conviction of the accused under Section 138 of the N.I. Act. As
the accused has paid the entire amount to the complainant, I am
of the view that a substantive sentence of imprisonment till
rising of the Court would be sufficient to meet the ends of
justice.
Crl.R.P.No. 341 of 2000
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7. Accordingly this revision petition is allowed in part.
The conviction of the accused in S.T. 3606 of 1995 on the file of
the J.F.C.M., Kunnamkulam under Section 138 of the N.I. Act
is confirmed. The sentence is reduced and the accused is
sentenced to undergo imprisonment till rising of court. The
J.F.C.M., Kunnamkulam is directed to execute the modified
sentence.
(M.L. JOSEPH FRANCIS)
Judge
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