IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 Crl.Rev.Pet.No. 2148 of 2005() ----------------------------------- CRA.390/2005 of SESSIONS COURT, ERNAKULAM CC.835/1998 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: -------------------------------------------------------- 1. M/S. HARI & ANAND, SAPTAGIRI, KARIKKAMURI, ERNAKULAM, REP. BY ITS PROPRIETRIX G.R.LATHA. 2. G.R. LATHA, W/O. PADMANABHAN, SAPTAGIRI, KARIKKAMURI, ERNAKULAM. BY ADVS. SRI.SHAIJAN C.GEORGE SRI.JOHN VIPIN SMT.S.A.SHERLY RESPONDENT(S): RESPONDENTS/COMPLAINANT: ---------------------------------------------------------- 1. KAMALESH C. ZAVERI, NEAR JAIN TEMPLE, NEW ROAD, KOCHI-2. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.P.T.JOSE R2 BY PUBLIC PROSECUTOR SMT.ANEY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs M.C.HARI RANI, J * * * * * * * * * * * * Crl.R.P.No.2148 of 2005 ---------------------------------------- Dated this the 11th day of April 2011 O R D E R As per judgment dated 19/4/2005, the trial court found accused 1 and 2 guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted thereunder under Section 255(2) Cr.P.C. The 2nd accused was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.1,50,000/- under Section 357(3) Cr.P.C and in default to undergo simple imprisonment for three months. The 1st accused was sentenced to pay a fine of Rs.5,000/-. In the appeal preferred by accused 1 and 2, vide judgment dated 06/08/2005 in Crl.A.No.390/2005, conviction and sentence of the 1st accused was confirmed and sentence imposed on the 2nd accused was altered to imprisonment for three months and compensation ordered against the 2nd accused was enhanced to Rs.2,25,000/- with default sentence of simple imprisonment for three months. Crl.R.P.No.2148/05 2 2. This revision petition was filed on 02/09/2005. At the time of admission of this petition, this court elaborately heard the learned counsel for the petitioners and as per order dated 05/09/2005, this Court found that “conviction of petitioner for the offence under Section 138 of the Negotiable Instruments Act is perfectly legal, regular and proper and warrants no interference.” This revision petition was admitted to decide the limited question of the legality of the sentence. 3. Heard the learned counsel for the revision petitioners/accused and the learned counsel for the 1st respondent/complainant. The learned Public Prosecutor is also heard. 4. At the time of argument, it is submitted by the learned counsel for the revision petitioners/accused that an amount of Rs.1,25,000/- has already been deposited by the revision petitioners before the court below on 12/09/2005 as ordered by this Court on 05/09/2005 while suspending the sentence as per order in Crl.M.A.No.14532/05. Report dated 07/04/2011 has also been received from the learned J.F.C.M-I, Kochi that Rs.1,25,000/- has been deposited in C.C.No.835/1998 before that Crl.R.P.No.2148/05 3 court on 12/09/2005. The learned counsel for the revision petitioners prays that the amount of compensation ordered by the appellate court may be reduced and three months time may be given to pay/deposit the balance amount of compensation. It is also prayed to modify the sentence of simple imprisonment for three months to imprisonment till rising of court. 5. The disputed cheque in this case is for Rs.1,25,000/- dated 05/02/1996. A concurrent finding of guilty and conviction is there against the revision petitioners by the trial court as well as by the appellate court. That finding has already been confirmed by this Court at the time of admission of this revision petition as per order dated 05/09/2005 and directed the revision petitioners to deposit Rs.1,25,000/- before the trial court for suspending the sentence. That amount is already deposited (vide report dated 07/04/2011 of the learned J.F.C.M-I, Kochi). About 14 years is already elapsed after the issuance of the disputed cheque. After hearing both counsel, I am inclined to modify the sentence on the 2nd revision petitioner. The sentence of imprisonment for three months is modified as imprisonment till rising of court and Rs.1,75,000/- is fixed as the total Crl.R.P.No.2148/05 4 compensation and the 2nd revision petitioner is directed to either pay/deposit the balance amount of Rs.50,000/- (less the amount of Rs.1,25,000/- already deposited) and in default to undergo simple imprisonment for two months. 6. In the result, a) This revision petition is allowed in part. b) The impugned concurrent verdict of guilty and conviction of revision petitioners 1 and 2 under Section 138 of the Negotiable Instruments Act are confirmed. (c) But the sentence imposed on the 2nd revision petitioner is modified and reduced. In supersession of the sentence imposed on the 2nd revision petitioner by the courts below, she is sentenced to undergo imprisonment till rising of court. She is further directed under Section 357(3) Cr.P.C to pay/deposit the balance amount of Rs.50,000/- (Rupees fifty thousand only) as compensation within a period of three months and in default to undergo simple imprisonment for a period of three months. The amount in deposit, if any, and the balance amount if deposited shall be released to the complainant on proper application. The 2nd revision petitioner shall have time Crl.R.P.No.2148/05 5 till 11/07/2011 to deposit the balance amount of compensation of Rs.50,000/- and thus avoid the default sentence. The 2nd revision petitioner is also at liberty to pay directly the balance amount of Rs.50,000/- to the complainant and to produce the receipt for the same before the trial court to avoid default sentence. The 2nd revision petitioner shall appear and her sureties shall produce her before the learned Magistrate on 12/07/2011 for execution of the sentence. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.2148/05 6 Crl.R.P.No.2148/05 7 Crl.R.P.No.2148/05 8 M.C.HARI RANI, J Crl.R.P.No.504 of 2001 ORDER Crl.R.P.No.2148/05 9 17th DAY OF JUNE 2001 Crl.R.P.No.2148/05 10