IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2342 of 2009()
1. MARY THANKACHAN,
... Petitioner
Vs
1. P.K.BALACHANDRAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.N.SASIDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2342 of 2009
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Dated this the 23rd day of July, 2009
O R D E R
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This revision is in challenge of concurrent finding entered
by the courts below regarding due execution of a cheque for the
discharge of a legally recoverable debt/liability. Petitioner was
convicted by learned Judicial First Class Magistrate-II (Mobile),
Kottayam in S.T. No.191 of 2007. She was sentenced to undergo
simple imprisonment till rising of the court. There was also a
direction for payment of compensation of Rs.30,000/- with a
default sentence of simple imprisonment for one month. Learned
Additional Sessions Judge, Kottayam modified the sentence as
fine of Rs.30,000/- with default sentence of simple imprisonment
for one month.
2. According to respondent No.1 petitioner borrowed
Rs.30,000/- from him and issued Ext.P1, cheque dated 2.3.2005
for repayment of that amount. Dishonour of that cheque for
insufficiency of funds is proved by Exts.P2 and P3. Service of
statutory notice on petitioner is proved by Exts.P4 to P6.
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Petitioner did not reply to the statutory notice. Respondent No.1
gave evidence as P.W1. Petitioner contended that she had
borrowed Rs,10,000/- from one Salim and given an unsigned
blank cheque as security and that cheque has been misused.
Petitioner did not adduce evidence or bring out circumstances to
prove or probabilise that case. Respondent No.1 denied that
suggestion. There is nothing to disbelieve the evidence of
respondent No.1 as P.W1. Petitioner did not reply to the statutory
notice served on her. Courts below found in favour of due
execution of the cheque. I find no reason to interfere with the
conviction of petitioner.
3. Learned magistrate sentenced petitioner to undergo
simple imprisonment till rising of the court and she was directed
to pay compensation of Rs.30,000/-. Appellate court modified the
sentence as fine of Rs.30,000/- with default sentence of one
month. It was directed that fine if realised shall be given to
respondent No.1 as compensation.
4. Learned counsel for petitioner requested that fine
may be converted as compensation payable to respondent No.1
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directly and requested three months’ time to deposit the
compensation.
5. Section 386 of the Code of Criminal Procedure permits
appellate court even in an appeal from conviction and sentence
to alter or modify the sentence but not so as to enhance it. In
Radhakishnan Nair v. Padmanabhan (2000 (2) KLT 349)
learned magistrate sentenced the accused to pay fine exceeding
Rs.5,000/-, illegally. In the appeal preferred by the accused
learned Sessions Judge modified the sentence as simple
imprisonment till rising of the court and compensation payable to
the complainant. Legality of that, was challenged in revision in
this Court on the premise that modification of sentence effected
by the appellate court amounted to enhancement of sentence.
That contention was negatived. Revisional court is entitled to
exercise such power as the appellate court could exercise.
Therefore in exercise of the power of revision this Court can
modify the sentence though not to enhance it. Therefore simple
imprisonment till rising of the court will not amount to
enhancement of sentence. Fine can be converted as
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compensation payable to respondent No.1. Considering the
circumstances stated by learned counsel, petitioner is granted
three months’ time to deposit compensation in the trial court.
Resultantly, this revision petition is allowed in part to the
following extent.
(i) Sentence of fine imposed by the
appellate court is set aside.
(ii) Petitioner is sentenced to undergo
simple imprisonment till rising of the court.
(iii) Petitioner is directed to deposit in
the trial court within three months from this
day Rs.30,000/- (Rupees Thirty thousand only)
by way of compensation for payment to
respondent No.1 under Section 357(3) of the
Code of Criminal Procedure. In case of default,
petitioner shall undergo simple imprisonment
for two months.
(iv) It is made clear that it shall be
sufficient compliance of condition (iii) if
petitioner paid compensation to respondent
No.1 through her counsel in the trial court and
respondent No.1 filed a statement in the trial
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court through his counsel acknowledging
receipt of the compensation within the said
period.
Petitioner shall appear in the trial court on 26.10.2009 to
receive the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv
THOMAS P.JOSEPH, J.
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CRL. R.P. NO. OF 2000
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O R D E R
JUNE, 2009