IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2348 of 2009()
1. SADASIVAN, THRIPURALAYAM HOUSE,
... Petitioner
Vs
1. SANTHOSH J.KANDANKULATHY,
... Respondent
2. STATE OF KERALA, REP.BY
For Petitioner :SRI.VIJU ABRAHAM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.R.P.NO.2348 OF 2009
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Dated this the 30th day of July, 2009
O R D E R
This revision is preferred against the judgment of the
Additional Sessions Judge, (Adhoc)-I, Kottayam in
Crl.A.No.489/2008. In fact, the said appeal had arisen out of
the conviction and sentence passed by the JFCM-II (Mobile),
Kottayam in S.T.No.2113/2007.
It is the case of the complainant that the accused had
borrowed a sum and towards the discharge of the liability had
issued a cheque, which when presented for encashment,
returned with the endorsement of account closed. The courts
below considered the matter in detail and the transactions is
evidenced to start with by virtue of an agreement Ext.P1,
subsequently a promissory note – Ext.P2 and ultimately by the
cheque – Ext.P3. Therefore, the courts held that the accused
did owe amount to the respondent and just because of closure
of account, it will not exonerate him from the liability.
These are all findings on facts concurrently held by the two
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courts. There is no scope for interference on that factual
findings. It is submitted that civil matters are pending before
the court. There cannot be any unjust enrichment for a
person when a person advances amount, necessarily he has
to be repaid but the borrower cannot be asked to pay it twice;
one under a criminal litigation and the other under a civil
litigation. So, in order to make the ends of justice when
compensation is ordered in this case and it is realised, there
will be a direction to the plaintiff in the civil suit only to
realise the amount less the amount already realised by way
of compensation under Section 357(3) of the Cr.P.C. Therefore,
the criminal revision is disposed of as follows:
1. The finding of guilt under Section 138 of the N.I. Act is
confirmed.
2. The sentence is modified and the accused is directed
to undergo imprisonment till the rising of the court and to pay
a compensation of Rs.2,11,600/= to the complainant as
compensation under Section 357(3) of the Cr.P.C and in default
to undergo S.I for another period of two months.
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3. If the compensation amount is received by the
complainant, then he has to deduct that amount from the
decree amount which is available to him under the civil
decree and only the balance can be collected in execution of
the said decree.
4. The revision petitioner shall present himself before
the court below to receive the sentence and to pay the
compensation on 1.12.2009.
M.N. KRISHNAN, JUDGE
cl
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