Kerala High Court
A. Moosa vs C. Rajan on 6 April, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1233 of 2002()
1. A. MOOSA, S/O. C. MUHAMMEDKUTTY,
... Petitioner
Vs
1. C. RAJAN, S/O. NARAYANAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.THOMAS ABRAHAM
For Respondent :SRI.P.CHADRASEKHAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :06/04/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
CRL.R.P.NO.1233 OF 2002 (A)
-----------------------------------
Dated this the 6th day of April, 2009
O R D E R
Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, in short, the 'N.I.Act'. The learned Magistrate, after trial, negativing the plea of not guilty raised by the accused, found him guilty of the offence under Section 138 of the N.I.Act and convicted him thereunder, sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs.71,000/- with default term of simple imprisonment for three months more. Out of the fine amount, if realised, Rs.70,000/- was directed to be given to the complainant as compensation under Section 357 (3) of the Cr.P.C. The accused challenged the conviction and sentence in appeal, and the Sessions Judge, after reappreciating the evidence, confirmed the conviction CRL.R.P.1233/02 2 and sentence imposing the substantive term of simple imprisonment of three months. Sentence directing payment of fine of Rs.71,000/- ordered by the Magistrate was set aside since the Magistrate has jurisdiction only to impose a maximum fine of Rs.5,000/-. Sum imposed as fine by the Magistrate was directed to be paid as compensation to the complainant under Section 357 (3) of the Cr.P.C. Questioning the legality, propriety and correctness of the conviction and sentence, the accused has preferred this revision.
2. I heard the counsel of both sides. Perusing the records of the case with reference to the submissions made by the counsel of both sides, I find the conviction of the accused for the offence under Section 138 of the N.I.Act is fully supported by legal evidence. The materials tendered in the case lead to the inescapable conclusion that Ext.P1 cheque was issued by the accused towards discharge of a liability to the complainant and it was dishonoured due to insufficiency of funds in his account. Notice issued intimating dishonour and demand for the sum covered by the cheque having not been CRL.R.P.1233/02 3 complied with, it is seen the complaint was filed within the period fixed by the Statute. Both the courts below have found that all the statutory formalities have been complied with to prosecute the accused for the offence under Section 138 of the N.I.Act and that the case of the complainant is proved by his sworn testimony as PW1 and the materials tendered in the case. The defence canvassed by the accused that only a lesser amount was borrowed from the complainant and it was discharged by payment was found to be unworthy of any merit. After going through the materials, I find that the concurrent findings entered by the courts below holding the accused guilty of the offence under Section 138 of the N.I.Act, and convicting him thereunder, is fully supported by the materials in the case, and it deserves only to be confirmed. Upholding the conviction under Section 138 of the N.I.Act, what remains to be looked into is only the adequacy of the sentence awarded. Having regard to the nature of offence involved, I am of the view that incarceration of the accused for a term is not necessary to meet the ends of justice. Sentence imposed against the accused is modified directing him to CRL.R.P.1233/02 4 undergo imprisonment till the rising of the court and to pay a compensation of Rs.80,000/- within two months from the date of this order. Compensation if any, realised, shall be paid to the complainant. In default of payment of compensation within the time stipulated, the accused shall undergo simple imprisonment for three months. The accused shall appear and his sureties to produce him on 15.7.2009, before the Judicial First Class Magistrate Court Kunnamkulam, and the learned Magistrate shall execute the sentence as directed.
Revision is allowed.
S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.
--------------------------------------------------------
CRL.R.P.NO.1233 OF 2002 ()
---------------------------------------------------------
O R D E R
---------------------------------------------------------
6th April, 2009