N.S.Sebastian vs State on 3 October, 2007

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Kerala High Court
N.S.Sebastian vs State on 3 October, 2007




Crl Rev Pet No. 3567 of 2007()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.P.CHANDY JOSEPH

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :03/10/2007

 O R D E R
                              V. RAMKUMAR , J
                       CRL. R.P. NO. 3567 OF 2007
                Dated this the 3rd day of October, 2007.


The revision petitioner, who is the accused in C.C. No.242/1999

on the file of Judicial First Class Magistrate Court, Chengannur charged

for an offence punishable under Section 420 of the Indian Penal Code,

challenges the conviction entered and sentence passed against him by

the courts below for the aforementioned offence.

2. The case of the prosecution as proved during the trial of the

case is the following:

On 30.04.1998 at 9 a.m. the revision petitioner/accused

approached the complainant and induced him to advance a loan of

Rs.96,000/-. The accused gave Ext.P2 post-dated cheque to the

complainant representing him that the cheque would be encashed on

07.05.1998. On 07.05.1998 the accused contacted the complainant

over telephone and promised that the cheque would be encashed in

the 1st week of October. Believing the words of the accused, the

complainant presented the cheuqe before the drawee bank namely

Chengannur branch of Lord Krishna Bank Ltd., on 08.10.98 hoping that

the same would be encashed. But the cheque was returned unpaid for

CRL. R.P. NO. 3567/2007 : 2:

the reason “Account Closed”. By closing the account, the accused

deliberately and with the dishonest intention of making unlawful gain,

committed the aforesaid offence punishable under Section 420 IPC.

3. The learned Magistrate took cognizance of the offence on the

basis of the police report. On the side of the prosecution, 7 witnesses

were examined as PWs 1 to 7 and 10 documents were marked as

Exts.P1 to P10.

4. After the close of the prosecution evidence, the revision

petitioner/accused was examined under Section 313(1)(b) Cr.P.C with

regard to the incriminating circumstances appearing against him in the

evidence for the prosecution. He denied those circumstances and

maintained his innocence. He did not adduce any defence evidence

when called upon to do so.

5. The learned Magistrate after trial, as per judgment dated

13.08.2003 found the revision petitioner guilty of the offences and

sentenced him to undergo simple imprisonment for six months and to

pay a fine of Rs.5000/- and on default to pay the fine, to suffer simple

imprisonment for two months.

6. Aggrieved by the conviction entered and sentence passed by

the trial court, the revision petitioner preferred an appeal before

CRL. R.P. NO. 3567/2007 : 3:

Additional Sessions Court I, Mavelikkara as Crl. Appeal No. 357/2003.

As per judgment dated 20.05.2005, the learned Additional Sessions

Judge dismissed the appeal confirming the conviction entered and the

sentence passed against the revision petitioner. Hence this revision.

7. Even though the learned counsel for the revision petitioner

assailed the conviction entered by the court below on various

grounds, in as much as the conviction has been recorded after a

careful evaluation of the oral and documentary evidence in the case,

this Court sitting in revision will be loath to interfere with the

conviction so recorded. The conviction is accordingly confirmed.

8. What now survives for consideration is the question regarding

the adequacy or otherwise of the sentence imposed on the revision

petitioner. The courts below have been insensitive to the mandate of

Section 357(3) Crl.P.C as per which the court has to give recompense

to the victim of crime. The need to exercise the power under Section

357(3) Cr.P.C liberally was emphasised by the apex Court in the

decision reported in Hari Kishan & State of Hariana v. Sukhbir

Singh (AIR 1988 SC 2127). Hence, I propose to alter the sentence

imposed on the revision petitioner. The sentence imposed on the

revision petitioner is set aside and instead he is directed to pay the

CRL. R.P. NO. 3567/2007 : 4:

cheque amount of Rs.96,000/- (Rupees Ninety six thousand) to the

defacto complainant(PW1-Gopinathan) by way of compensation under

Section 357(3) Cr.P.C within five months from today failing which he

shall undergo simple imprisonment for three months by way of default

sentence. Besides the compensation, the revision petitioner shall also

undergo imprisonment till rising of the court on a day to be fixed by

the trial court.

In the result the revision petition is disposed of confirming the

conviction entered and modifying the sentence as above.



CRL. R.P. NO. 3567/2007 : 5:

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