IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4040 of 2008()
1. P. SANDEEP, CHIEF EXECUTIVE OFFICER,
... Petitioner
2. M/S. ECOM COMPUSHOPE COM. LTD., 37,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. M/S. HIMAGIRI RESOURCES, 39/5671-72,
For Petitioner :SRI.T.M.DOLGOVE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/12/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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CRL.R.P. No.4040 OF 2008
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Dated this the 12th day of December, 2008
ORDER
Revision Petitioners are the accused and second
respondent the complainant in ST No.159/06 on the file of
Judicial First Class Magistrate-IV, Kochi. Revision Petitioners
were convicted and sentenced for the offence under section
138 of the Negotiable Instruments Act. They challenged the
conviction before the Additional Sessions Judge (Adhoc-II)
Ernakulam in Crl.A.No.320/08. The learned Sessions Judge
on reappreciation of the evidence confirmed the conviction,
and sentence and dismissed the appeal. It is challenged in
the revision.
2. Learned counsel for the revision petitioners
submitted that in view of the concurrent findings of the fact
and the evidence on record, revision petitioners are not
challenging the conviction and sentence may be modified
and one months time to be granted to pay the amount.
CRRP.NO.4040/08
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3. On going through the judgment of the Courts
below, I find no reason to interfere with the conviction. The
evidence establish that Ext.P1 cheque was issued by the
revision petitioner towards payment of Rs.25,000/- due
from him. It is also proved that 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 the Negotiable Instruments Act. Conviction for
the offence under section 138 of Negotiable Instruments Act
is perfectly legal.
4. Then the only question is regarding the sentence.
So long as the sentence is not a varied or modified against
the interest of the second respondent it is not necessary to
issue notice to the second respondent. Ext.P1 cheque was
issued towards the payment of Rs.25,000/- . Magistrate
sentenced first petitioner to simple imprisonment for two
months and pay compensation of Rs.25,000/- to first
respondent. Second petitioner was sentenced to fine of
CRRP.NO.4040/08
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Rs.5,000/-. The learned Sessions Judge confirmed the
sentence. But considering the entire facts of the case the
sentence as against first revision petitioner is modified to
simple imprisonment till rising of court and fine of
Rs.25,000/- and in default simple imprisonment for 2
months with a direction to pay the fine on realisation to
second respondent as compensation. I find no reason to
interfere with the sentence as against the second revision
petitioner.
Revision is allowed in part . Conviction of the revision
petitioners for the offence under section 138 of the
Negotiable Instruments Act and the sentence as against the
second revision petitioner is confirmed. The sentence as
against first revision petitioner is modified and he is
sentenced to imprisonment till rising of Court and to pay
fine of Rs.25,000/-and in default simple imprisonment for
two months. On realisation of the said fine, it is to be paid
to second respondent as compensation under section 357
CRRP.NO.4040/08
4
(1) (b) of the Code of Criminal procedure. The first revision
petitioner is granted one months time to pay the amount.
The first revision petitioner is directed to appear before the
Magistrate on 15.1.2009.
M.SASIDHARAN NAMBIAR, JUDGE
sks/-