IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3462 of 2008()
1. SUSEELAN, S/O.KOCHUKUTTAN, 4/51,
... Petitioner
Vs
1. MANOHARAN, S/O.MADHAVAN MANNADIAR,5TH
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3462 OF 2008
............................................
DATED THIS THE 24th DAY OF OCTOBER, 2008
ORDER
Petitioner is the accused in S.T.4379 of 2004 on the file of
Judicial First Class Magistrate, Chittoor. First respondent is the
complainant. Complaint was lodged contending that petitioner
joined a kuri and received the amount prizing the chitty and
after paying part of the amount, defaulted to pay the balance
and towards its payment of the balance amount, Ext.P1 cheque
was issued drawn in his account maintained in Kozhinjampara
branch of South Indian Bank for Rs.45,000/- on 10.5.2005. When
presented the cheque, it was dishonoured for want of sufficient
funds. First respondent sent Ext.P4 notice demanding the
amount covered under Ext.P1. It was received by the petitioner
under Ext.P5. But he did not pay and thereby committed the
offence. Learned Magistrate took cognizance of the offence
under Section 138 of N.I.Act. Petitioner pleaded not guilty. First
respondent was examined as PW1. Exts.P1 to P9 were marked.
2. Learned Magistrate, on the evidence, found the
petitioner guilty. He was sentenced to simple imprisonment for
three months and a compensation of Rs.50,000/- and in default,
CRRP 3462/2008 2
simple imprisonment for two months. Petitioner challenged the
conviction and sentence before Sessions Court, Palakkad in
Crl.A.55 of 2006. Learned Sessions Judge, on reappreciation of
evidence, confirmed the conviction and sentence and dismissed
the appeal. It is challenged in this revision petition.
3. Learned counsel appearing for petitioner was heard.
The argument of the learned counsel is that courts below was
not justified in convicting the petitioner, when first respondent
did not establish that Ext.P1 cheque was issued towards
discharge of a legally recoverable debt. It was also argued that
in any case, sentence awarded is excessive and because of the
financial conditions of petitioner, he may be granted time to pay
the fine.
4. Learned Magistrate and learned Sessions Judge
appreciated the evidence of PW1 in the proper perspective.
Though petitioner disputed the transaction, evidence of PW1
establish that petitioner had joined the kuri conducted by first
respondent and had bid the kuri and received the amount as
evidenced by Ext.P7 and towards the balance payable, issued
Ext.P1 cheque. Evidence also establish that when the cheque
was presented for encashment, it was dishonoured for want of
CRRP 3462/2008 3
sufficient funds. Though learned counsel argued that evidence
was not properly appreciated, on going through the judgments of
courts below, I cannot agree with the submission. Findings of
learned Magistrate was confirmed by learned Sessions Judge on
reappreciation of evidence. No material was pointed out, which
was omitted to be taken note of by courts below warranting a
different conclusion. Therefore on the evidence, conviction of
petitioner for the offence under Section 138 of N.I.Act is legal
and correct.
5. Then the question is with regard to the sentence.
Evidence establish that Ext.P1 cheque for Rs.45,000/- was issued
towards a chitty transaction. So long as the sentence is not to be
varied or modified against the interest of the first respondent, it
is not necessary to issue notice to first respondent. In the
circumstances of the case, interest of justice will be met, if
sentence is modified to imprisonment till rising of court and a
fine of Rs.50,000/- 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) of Code of Criminal
Procedure.
6. Revision petition is allowed in part. Conviction of
CRRP 3462/2008 4
petitioner under Section 138 of N.I.Act is confirmed. Sentence is
modified to imprisonment till rising of court and a fine of
Rs.50,000/- and in default, simple imprisonment for two months.
On realisation of the fine, it is to be paid to second respondent as
compensation under Section 357(1) of Code of Criminal
Procedure. Petitioner is granted three months time to pay the
fine. Petitioner is directed to appear before learned Magistrate
on the expiry of three months from today.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-