R.Remanan vs Droji on 13 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 4019 of 2008()


1. R.REMANAN, S/O.RAGHUNATHAN, LISSY
                      ...  Petitioner

                        Vs



1. DROJI, S/O.RAVEENDRA NATH,
                       ...       Respondent

2. STATE OF KERALA, REP. BY PUBLIC

                For Petitioner  :SRI.R.ANILKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :13/01/2009

 O R D E R
                     M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                    CRL.R.P.NO. 4019 OF 2009
                     ............................................
       DATED THIS THE 13th DAY OF JANUARY, 2009

                                    ORDER

Revision petitioner is the accused and first respondent, the

complainant in S.T.2646 of 2003 on the file of Judicial First Class

Magistrate, Varkala. Revision petitioner was convicted and sentenced

for the offence under Section 138 of N.I.Act. He challenged the

conviction before Sessions Court, Thiruvananthapuram in Crl.A.392

of 2005. Learned Additional Sessions Judge, on reappreciation of

evidence, confirmed the conviction and sentence and dismissed the

appeal. It is challenged in this revision petition.

2. Learned counsel appearing for revision petitioner was heard.

Learned counsel though submitted that there is discrepancy in the

complaint as what was pleaded in the complaint was that the cheque

was issued for Rs.1,00,000/- and not for Rs.2,00,000/-, in view of the

concurrent findings of the courts below and the evidence on record,

submitted that revision petitioner is not challenging the conviction

and is only seeking modification of the sentence and six months time

to pay the amount covered by the dishonoured cheque.

3. Though learned counsel submitted that there is discrepancy

in the complaint and evidence, a reading of the complaint shows that

it was specifically pleaded in the complaint that revision petitioner

CRRP 4019/2008 2

borrowed Rs.2,00,000/- and towards its repayment, issued two

separate cheques each for Rs.1,00,000/-. What was pleaded is that

each cheque was for Rs.1,00,000/- and not that the cheques together

were issued for Rs.1,00,000/-. On going through the judgments of the

courts below, I do not find any reason to interfere with the conviction.

Evidence establish that revision petitioner borrowed Rs.2,00,000/-

from first respondent and towards its repayment, issued Ext.P1 and

P2 cheques respectively for Rs.1,00,000/- each and the cheques were

dishonoured, when presented for encashment, for want of sufficient

funds and first respondent had complied with all the statutory

formalities provided under Section 138 and 142 of N.I.Act. In such

circumstances, conviction of revision petitioner for the offence under

Section 138 of N.I.Act is perfectly legal.

4. Then the question is with regard to the sentence. Learned

Magistrate awarded a sentence of simple imprisonment for four

months, in addition to compensation for the amount covered by the

dishonoured cheque with a default sentence. As rightly pointed out by

the learned counsel, when compensation is awarded under Section

357(3) of Code of Criminal Procedure, there cannot be a default

sentence. Therefore to that extent, sentence is illegal and is to be

modified. So long as the sentence is not varied or modified against

the interest of first respondent, it is not necessary to issue notice to

CRRP 4019/2008 3

first respondent. Considering the entire facts and circumstances of

the case, interest of justice will be met, if the sentence is modified to

imprisonment till rising of court, in addition to a fine of Rs.2,00,000/-

and in default, simple imprisonment for two months with a direction

to pay the fine on realisation to first respondent as compensation.

5. Revision petition is allowed in part. Conviction of revision

petitioner for the offence under Section 138 of N.I.Act is confirmed.

Sentence is modified. Revision petitioner is sentenced to

imprisonment till rising of court and a fine of Rs.2,00,000/- and in

default, simple imprisonment for two months. On realisation of fine, it

is to be paid to first respondent as compensation under Section 357

(1)(b)of Code of Criminal Procedure. Revision petitioner is granted six

months, time from today, to pay the fine. He is directed to appear

before Judicial First Class Magistrate, Varkala on 13.7.2009.

M.SASIDHARAN NAMBIAR, JUDGE

lgk