IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3436 of 2008()
1. P.K.DAMODARAN,S/O.APPUKUTTAN, PARAKKATTU
... Petitioner
Vs
1. P.MUHAMMEDKUNHI MUSLIYAR,
... Respondent
2. STATE OF KERALA REPRESENTED BY PUBLIC
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/10/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.3436 OF 2008
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Dated this the 22nd day of October,2008
ORDER
Petitioner is the accused and first respondent
the complainant in C.C.62/2005 on the file of
Judicial First Class Magistrate II (Forest
Offences), Manjeri. First respondent lodged the
complaint contending that petitioner borrowed
Rs.50,000/- and towards its repayment issued Ext.P1
cheque drawn in his account maintained in Wynad
District Co-operative Bank, Panamaram Branch and
when the cheque was presented it was dishonoured
for want of sufficient funds under Ext.P2 and
Ext.P4 notice was sent demanding the amount. But
petitioner failed to pay the amount and thereby
committed the offence under section 138 of
Negotiable Instruments Act. Petitioner pleaded not
guilty. First respondent was examined as PW1.
Exts.P1 to P4 were marked. On the side of the
petitioner no evidence was adduced. Learned
CRRP 3436/2008 2
Magistrate on the evidence found the petitioner
guilty. He was convicted and sentenced to simple
imprisonment for three months and a compensation of
Rs.50,000/- and in default simple imprisonment for
two months for the offence under section 138 of
Negotiable Instruments Act. Petitioner challenged
the conviction and sentence before Sessions Court,
Manjeri in Crl.A.93/2007. Learned Sessions Judge
on reappreciation of evidence confirmed the
conviction but modified the sentence to
imprisonment till rising of the court and a
compensation of Rs.50,000/- with a default sentence
of simple imprisonment for three months. It is
challenged in this revision.
2. Learned counsel appearing for the
petitioner was heard.
3. The argument of the learned counsel
appearing for petitioner is that courts below did
not properly appreciate the evidence and on the
evidence it should have been found that petitioner
had paid the entire amount due to first respondent.
CRRP 3436/2008 3
It was argued that though assistance of a defence
counsel was provided to the petitioner, because of
difference of opinion he did not contest the case
and therefore necessary evidence could not be
adduced and hence the conviction and sentence is
not sustainable. Learned counsel finally submitted
that petitioner may be granted four months time to
pay the amount as directed by the Sessions Court.
4. On going through the judgment of the courts
below, I do not find any reason to interfere with
the conviction. Evidence establish that Ext.P1
cheque was issued towards repayment of the amount
borrowed. Though petitioner contended that the
entire amount due to first respondent was paid and
therefore no liability exists, no evidence was
adduced to prove the alleged discharge. Even
petitioner was not examined to prove the
discharge. In such circumstance, courts below
rightly rejected the claim of discharge. Evidence
establish that Ext.P1 cheque was dishonoured for
want of sufficient funds. Evidence also prove that
CRRP 3436/2008 4
first respondent has complied with all statutory
formalities provided under section 138 ad 142 of
Negotiable Instruments Act. The conviction of the
petitioner for the offence under section 138 of
N.I. Act is perfectly legal.
5. Then the only question is with regard to
the sentence. Learned Sessions Judge modified the
sentence to imprisonment till rising of the court
in addition to compensation with a default
sentence. In view of the decision of the Apex
Court that when compensation is awarded under
section 357(3) of Code of Criminal Procedure, there
cannot be a default sentence, sentence to that
extent is illegal. But that defect could be cured
by modifying the sentence to fine instead of
compensation.
The revision is partly allowed. The conviction
for the offence under section 138 of N.I. Act is
confirmed. Sentence is modified to imprisonment
till rising of the court and a fine of Rs.50,000/-
to be paid within four months from today and in
CRRP 3436/2008 5
default simple imprisonment for one month. On
realisation of the fine it is to be paid to first
respondent as compensation under section 357(1) of
the Code of Criminal Procedure. Petitioner is
directed to appear before the Magistrate on the
expiry of four months from today.
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