IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 856 of 2006() ------------------------------------------- CRA.NO.146/2004 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC)II, KOLLAM. C.C.NO.351/2002 OF JUDICIAL 1ST CLASS MAGISTRATE COURT II, KOTTARAKKARA. .......................... REVISION PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------------------------------ MURALEEDHARAN, SHYAM VIHARIL, MATHILIL CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM TALUK. BY ADV. SRI.K.G.RENGANATH SMT. BINDHU SREEKUMAR RESPONDENTS: RESPONDENTS:STATE AND COMPLAINANT: -------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAJAN, S/O.PUSHPANGATHAN, KARTHIKA BHAVANIL, CHIRAVOOR MURI, CHITHARA VILLAGE, KOTTARAKKARA. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 856 OF 2006 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and second respondent, the complainant in C.C.351 of 2002 on the file of Judicial First Class Magistrate-II, Kottarakkara. Petitioner was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.3,00,000/- under Section 357(3) of Code of Criminal Procedure for the offence under Section 138 of N.I.Act. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.146 of 2004. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Though notice was served on second respondent, he did not appear. Learned senior counsel appearing for petitioner was heard. Learned senior counsel pointed out that on the failure of the petitioner to deposit the amount, as directed by this court, while suspending the sentence as per order dated 30.6.2006, petitioner was arrested while undergoing sentence in another case, on 5.4.2008 and since then, he has been undergoing the CRRP 856/2006 2 sentence and therefore the sentence may be confined to the period he had already undergone. Learned senior counsel also pointed out that even though petitioner was sentenced only to simple imprisonment for three months and compensation under Section 357(3) of Code of Criminal Procedure, without a default sentence, learned Sessions Judge wrongly took the sentence as simple imprisonment for three years and a fine of Rs.3,00,000/- and confirmed the same and it is illegal. 3. Learned Magistrate, on the evidence of second respondent as PW1 and Exts.P1 to P6, found that Ext.P1 cheque was issued by petitioner to second respondent towards repayment of the amount obtained and it was dishonoured when presented for encashment for want of sufficient funds and second respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Learned Sessions Judge, on reappreciation of evidence, confirmed the same. I do not find any reason to interfere with that factual finding. Evidence establish that Ext.P1 cheque was issued towards repayment of the amount due. Evidence also establish that it was dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. CRRP 856/2006 3 Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to sentence. There is force in the submission of learned senior counsel that learned Sessions Judge wrongly took the sentence as simple imprisonment for three years and a fine of Rs.3,00,000/-. Judgment of learned Magistrate establish that sentence was only simple imprisonment for three months and a compensation of Rs.3,00,000/- without any default sentence. Learned Sessions Judge, without discussing the details of the sentence, confirmed the conviction and sentence and dismissed the appeal. When revision was admitted on 30.6.2006, order suspending the sentence was passed, directing petitioner to deposit Rs.1,00,000/- before the trial court was passed. Learned senior counsel submitted that because of the failure to deposit the amount as directed, petitioner was arrested on 5.4.2008, while he was undergoing sentence in Crl.A.369 of 2004 where he was convicted under Section 138 of N.I.Act and was sent to prison and he has been undergoing the sentence from 5.4.2008 and the period of three months has already expired. Even if petitioner was undergoing sentence from 5.4.2008 as stated by learned senior counsel, he was undergoing sentence not in this case but CRRP 856/2006 4 in the other case. In the absence of a direction to undergo sentence concurrently in this case, the period undergone in the other case cannot be treated as the sentence suffered in this case. 5. The facts and circumstances of the case establish that because of financial conditions, petitioner could not pay the amount and he is undergoing the sentence. In such circumstances, interest of justice will be met if the sentence in this case is directed to run concurrently with the sentence in C.C.369 of 2004. 6. Revision is therefore disposed as follows. Conviction and sentence for the offence under Section 138 of N.I.Act is confirmed. The sentence in C.C.351 of 2002 on the file of Judicial First Class Magistrate, Kottarakara shall run concurrently with the sentence in C.C.549 of 2001 on the file of Chief Judicial Magistrate, Kollam. If the period of sentence is over, petitioner shall be released from prison, if not wanted in any other case. M.SASIDHARAN NAMBIAR, JUDGE lgk/-