IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3567 of 2007()
1. N.S.SEBASTIAN
... Petitioner
Vs
1. STATE
... 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
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CRL. R.P. NO. 3567 OF 2007
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Dated this the 3rd day of October, 2007.
ORDER
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
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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
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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
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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.
V. RAMKUMAR, JUDGE.
rv
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