IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3877 of 2008()
1. MEDICON ENTERPRISES, 43 A, HUDA COMPLEX,
... Petitioner
2. K.B.MALIK, PARTNER, MEDICON ENTERPRISES,
Vs
1. M/S.HINDUSTAN LATEX, LATEX BHAVAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.D.PEETHAMBARAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/12/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3877 OF 2008
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Dated this the 1st day of December,2008
ORDER
Revision petitioners are the accused and first
respondent the complainant. First petitioner is
the firm and second petitioner is the partner
representing the firm. Case of first respondent is
that towards the amount due from first petitioner
Ext.P1 cheque for Rs.1,54,620/- dated 30.4.2002 was
issued by second petitioner being the partner of
the firm drawn in the account maintained by the
Rohtak branch of Oriental Bank of Commerce and when
the cheque was presented for encashment, it was
dishonoured under Ext.P2 and inspite of Ext.P4
notice served on the petitioners under Ext.P5 they
did not pay the amount and thereby committed the
offence under section 138 of Negotiable Instruments
Act. Petitioners pleaded not guilty. Learned
Chief Judicial Magistrate on the evidence of PW1
and Exts.P1 to P9 on the side of first respondent
CRRP 3877/2008 2
and DW1 and Exts.D1 to D3 on the side of the
revision petitioners found the petitioners guilty.
They were convicted for the offence under section
138 of Negotiable Instruments Act. First
petitioner was sentenced to a fine of Rs.5000/- and
second petitioner to simple imprisonment for six
months and a fine of Rs.5000/- and also a
compensation of Rs.1,54,620/-. Petitioners
challenged the conviction and sentence before
Sessions Court, Thiruvananthapuramin
Crl.A,472/2005. Learned Sessions Judge on
reappreciation of evidence confirmed the conviction
and sentence and dismissed the appeal. It is
challenged in this revision.
2. Learned counsel appearing for revision
petitioners was heard.
3. Learned counsel submitted that revision
petitioners are not challenging the conviction but
sentence may be modified. Learned counsel also
sought three months time to pay the amount covered
by the dishonoured cheque. So long as the sentence
is not varied or modified against the interest of
CRRP 3877/2008 3
first respondent, it is not necessary to issue
notice to first respondent.
4. The courts below on appreciating the
evidence in the proper perspective found that
Ext.P1 cheque was issued by first revision
petitioner firm towards repayment of Rs.1,54,620/-
due and the cheque was issued for the first
petitioner by the second petitioner. That factual
findings are in accordance with the evidence and
warrants no modification. Evidence also establish
that the cheque was dishonoured for want of
sufficient funds and first respondent had complied
with all the statutory formalities provided under
section 138 and 142 of Negotiable Instruments Act
is perfectly legal.
5. Then the question is regarding the sentence.
Learned Magistrate sentenced first petitioner to a
fine of Rs.5000/-. That sentence is perfectly
reasonable and warrants no interference. As
against second petitioner, the sentence is not
legal. Learned Magistrate awarded a substantive
sentence of simple imprisonment for six months and
CRRP 3877/2008 4
a fine of Rs.5000/- and also directed to pay a
compensation of Rs.1,54,620/- the amount covered by
Ext.P1 cheque. When fine forms part of the
sentence, under sub section (1) of Section 357
compensation could only be either the whole or part
of the fine. Compensation under sub section (3) of
Section 357 can be awarded only if fine does not
form part of the sentence. When learned
Magistrate sentenced second petitioner to pay a
fine of Rs.5000/-, in view of sub section (3) of
Section 357 of Code of Criminal Procedure
compensation could not have been awarded except to
the extent of fine. Unfortunately learned
Sessions Judge did not take note of this
illegality. Considering the entire facts and
circumstances of the case, interest of justice will
be met, if the sentence is modified as against
second revision petitioner to imprisonment till
rising of the court and a fine of Rs.1,70,000/- and
in default simple imprisonment for three months.
On realisation of fine, Rs.1,60,000/- to be paid to
first respondent as compensation under section 357
CRRP 3877/2008 5
(1)(b) of Code of Criminal Procedure.
Revision is allowed in part. Conviction of
revision petitioners for the offence under section
138 of Negotiable Instruments Act is confirmed.
Sentence as against first petitioner is also
confirmed. The sentence as against the second
petitioner is modified as follows:- Second
petitioner is sentenced to imprisonment till
rising of court and a fine of Rs.1,70,000/- and in
default simple imprisonment for three months. On
realisation of fine, Rs.1,60,000/- is to be paid to
first respondent as compensation under section 357
(1) (b)of Code of Criminal Procedure. Second
petitioner is granted three months time to pay the
fine. Second petitioner is directed to appear
before the Addl.Chief Judicial Magistrate,
Thiruvananthapuram on 4.3.2009.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006