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
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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
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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