IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 118 of 2009()
1. P.SIMON, SMITHA BHAVAN, KALLUVILA,
... Petitioner
Vs
1. G.SOMAN, S/O.GOPALAN, KUZHIVILA MELE
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.G.SUDHEER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/01/2009
O R D E R
M. SASIDHARAN NAMBIAR,J.
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CRL.R.P.No.118 OF 2009
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Dated this the 23rd day of January, 2009
O R D E R
Revision petitioner is the accused and first respondent
the complainant in C.C.155 of 2005 on the file of Judicial First
Class Magistrate-V, Neyyattinkara. Revision petitioner was
convicted and sentenced for the offence under section 138 of
Negotiable Instruments Act. Revision petitioner challenged the
conviction before Sessions Court, Thiruvananthapuram in
Crl.Appeal 821 of 2007. Learned Sessions Judge on
reappreciation of evidence confirmed the conviction but modified
the sentence to imprisonment till rising of Court and fine of
Rs.1,55,000/- and in default simple imprisonment for six months
with a direction to pay the fine on realisation to first respondent
as compensation under section 357(1) (b) of Code of Criminal
Procedure. Revision is filed challenging the conviction and
sentence.
2. Learned counsel appearing for revision petitioner was
heard.
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3. Learned counsel submitted that in view of the
evidence on record and the concurrent findings of fact revision
petitioner is not challenging the conviction, but he may be
granted three months’ time to pay the fine as directed by the
learned Sessions Judge.
4. On going through the judgments of the Courts below,
I find no reason to interfere with the conviction. Evidence of
PW1 establish that revision petitioner borrowed Rs.1,50,000/- on
4.2.2002 and towards its repayment issued Ext.P1 cheque dated
28.5.2007, which was dishonoured for want of sufficient funds
when presented for encashment. Though revision petitioner
disputed his signature, Courts below rejected the case based on
the evidence of PW1. Though it was also contended that being a
joint account, the cheque signed by the revision petitioner alone
could not have been encashed, evidence of DW1, the Manager of
the bank, establish that there is no bar for operation of the
account by one of the joint account holders. Moreover, the
dishonour was not for the reason that cheque was signed by only
one of the joint account holders. Evidence also establish that
first respondent had complied with all statutory formalities
CRRP 118/2009
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provided under section 138 and 142 of Negotiable Instruments
Act. Conviction of the revision petitioner for the offence under
section 138 of Negotiable Instruments Act is perfectly legal.
5. Then the only question is regarding the sentence.
Learned Sessions Judge modified the sentence to imprisonment
till rising of Court and fine with a direction to pay the fine on
realisation to first respondent as compensation. The fine
awarded is only Rs.5,000/- in excess of the amount covered by
the dishonoured cheque, issued in 2002. In such circumstances
I find no reason to interfere with the sentence also.
Revision is dismissed. Revision petitioner is granted three
months time to pay the compensation. Revision petitioner is
directed to appear before Judicial First Class Magistrate-V,
Thiruvananthapuram on 24.4.2009.
M. SASIDHARAN NAMBIAR, JUDGE
okb