IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3348 of 2008()
1. RAVI THAMPAN @ RAVINDRAN THAMPAN,
... Petitioner
Vs
1. JOSE, S/O.MATHEW, KUNNUMPURATH HOUSE
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3348 OF 2008
............................................
DATED THIS THE 13th DAY OF OCTOBER, 2008
ORDER
Petitioner was concurrently convicted and sentenced for simple
imprisonment for one month for the offence under Section 138 of
N.I.Act by Chief Judicial Magistrate, Manjeri. In addition, he was
directed to pay a cost of Rs.750/- and in default, simple imprisonment
for one day. Petitioner challenged the conviction and sentence
before Sessions Court, Manjeri. Learned Additional Sessions Judge,
on reappreciation of evidence, confirmed the conviction, but modified
the sentence to imprisonment till rising of court and a compensation
of Rs.1,05,000/- and in default, simple imprisonment for two months.
It is challenged in this revision petition filed under Section 397 and
401 of Code of Criminal Procedure.
2. Learned counsel appearing for petitioner was heard.
3. The learned counsel argued that courts below did not
properly appreciate the evidence and should have found that Ext.P1
cheque was not issued towards discharge of a legally recoverable debt
and therefore the conviction is not sustainable. It was also argued that
in any event, sentence awarded is excessive. Learned counsel further
submitted that in case conviction and sentence is to be confirmed,
petitioner may be granted four months’ time to pay the amount.
Crrp 3348/2008 2
4. Case of the first respondent was that petitioner borrowed
Rs.1,05,000/- from him and towards its repayment, issued Ext.P1
cheque drawn on the then Nedungadi Bank Ltd, which was
subsequently merged with Punjab National Bank and when the
cheque was presented for encashment, it was dishonoured under
Ext.P2, for want of sufficient funds and in spite of Ext.P4 notice
served on the petitioner, demanding the amount covered by the
cheque, which was received by petitioner under Ext.P6
acknowledgement card, petitioner did not pay the amount and
thereby committed the offence under Section 138 of N.I.Act.
Petitioner pleaded not guilty.
5. Learned Chief Judicial Magistrate, on appreciation of
evidence, found that Ext.P1 cheque was issued towards repayment of
the amount due and it was dishonoured for want of sufficient funds
and first respondent has complied with all the statutory formalities
provided under 138 and 142 of N.I Act and therefore convicted and
sentenced the petitioner. Though learned counsel argued that
evidence was not properly appreciated, on going through the
judgments of the courts below, I cannot agree with the submission.
Evidence establish that petitioner borrowed Rs.1,05,000/- from first
respondent and issued Ext.P1 cheque towards its repayment.
Evidence also establish that when the cheque was presented for
Crrp 3348/2008 3
encashment, through the account maintained by first respondent in
his bank, it was dishonoured for want of sufficient funds and first
respondent has complied with all the statutory formalities provided
under 138 and 142 of N.I Act. Therefore conviction of petitioner for
the offence under Section 138 of N.I.Act, is perfectly legal and
correct.
6. Then the only question is with regard to the sentence.
Though Chief Judicial Magistrate sentenced petitioner to simple
imprisonment for one month, learned Sessions Judge modified the
sentence to imprisonment till rising of court, in addition to
compensation of Rs.1,05,000/-. Even though cheque was for Rs.
1,05,000/-, and was issued on 15.2.2006, compensation awarded was
only for the amount covered by the cheque. Learned counsel argued
that in view of the decision of the Apex Court, there cannot be a
default sentence for the compensation awarded under Section 352(3)
of Code of Criminal Procedure and therefore sentence is illegal.
There is force in the submission. But that defect could be cured if
instead of awarding a compensation, petitioner is sentenced to a fine
with a default sentence and provision for payment of compensation
under Section 357(1) of Code of Criminal Procedure.
7. Revision petition is allowed in part. While confirming
conviction for the offence under Section 138 of N.I.Act, sentence is
Crrp 3348/2008 4
modified to imprisonment till rising of court and a fine of
Rs.1,05,000/-, and in 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 Code of Criminal Procedure.
Petitioner is granted four months time to pay the fine from today.
Petitioner is directed to appear before the learned Magistrate on the
expiry of four months from today.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-