High Court Kerala High Court

T.M.Asokan vs Chandran on 27 November, 2008

Kerala High Court
T.M.Asokan vs Chandran on 27 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3536 of 2008()


1. T.M.ASOKAN, S/O.KUNHIRAMAN NAIR,
                      ...  Petitioner

                        Vs



1. CHANDRAN, S/O.KUNHIRAMAN,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.P.V.KUNHIKRISHNAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :27/11/2008

 O R D E R
                M. SASIDHARAN NAMBIAR, J.
                   ------------------------------------------
                    CRL.R.P. NO. 3536 OF 2008
                   ------------------------------------------
           Dated this the 27th day of November, 2008

                               O R D E R

Revision petitioner is the accused and first respondent

the complainant in C.C. 470 of 2006 on the file of Judicial First

Class Magistrate-II, Perambra. First respondent lodged the

complaint contending that revision petitioner borrowed

Rs.75,000/- on 21.12.2005 and towards its repayment issued

Ext.P1 cheque dated 31.5.2006 drawn in his account and when

the cheque was presented for encashment, it was dishonoured

for want of sufficient funds under Ext.P2 and in spite of Ext.P3

notice, demanding the amount served under Ext.P5, petitioner

did not pay and instead Ext. P6 reply notice was sent and

thereby committed the offence under section 138 of Negotiable

Instruments Act. Petitioner pleaded not guilty. Learned

Magistrate on the evidence of first respondent as PW1 and

Exts.P1 to P6 found the petitioner guilty. He was convicted and

sentenced to simple imprisonment for three months and a

compensation of Rs.75,000/- and in default simple imprisonment

for three months. Petitioner challenged the conviction before

CRRP 3536/08 2

Sessions Court, Kozhikode in Crl. Appeal 564 of 2007. Learned

Sessions Judge on reappreciation of evidence confirmed the

conviction and sentence and dismissed the appeal. It is

challenged in the revision.

2. Learned counsel appearing for revision petitioner was

heard.

3. Learned counsel did not challenge the conviction and

sought only modification of the sentence and time for payment of

amount.

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

against the interest of first respondent, it is not necessary to

issue notice to first respondent.

5. The judgments of the Courts below establish that

evidence was properly appreciated. The evidence of PW1

establish that Ext.P1 cheque was issued towards discharge of

Rs.75,000/- borrowed earlier. It is also proved that the cheque

was dishonoured for want of sufficient funds. It is further

proved that first respondent had complied with all the statutory

formalities provided under section 138 and 142 of Negotiable

Instruments Act. Conviction of the petitioner for the offence

under section 138 of N.I. Act is perfectly legal.

CRRP 3536/08 3

6. Then the only question is regarding the sentence.

Though learned Magistrate awarded a substantive sentence it

was reduced by the learned Sessions Judge. From the nature of

the offence 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 fine with a direction to pay the fine on

realisation to first respondent as compensation.

Revision is allowed in part. Conviction of the petitioner for

the offence under section 138 of Negotiable Instruments Act is

confirmed. Sentence is modified. Petitioner is sentenced to

imprisonment till rising of Court and a fine of Rs.80,000/- and in

default simple imprisonment for two months. On realisation of

fine, Rs.75,000/- is to be paid to first respondent as

compensation under section 357(1)(b) of Code of Criminal

Procedure. On the request of the learned counsel, revision

petitioner he is granted six months time from today, to pay the

fine. Revision petitioner is directed to appear before the

Magistrate on 28.5.2009.

M. SASIDHARAN NAMBIAR,
JUDGE

Okb/-