IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3877 of 2008() ------------------------------ CRA.472/2005 of ADDL. SESSIONS COURT (FAST TRACK COURT -I) TRIVANDRUM CC.170/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ---------------------------------------------------- 1. MEDICON ENTERPRISES, 43 A, HUDA COMPLEX, ROHTAKL, HARYANA - 123001, REPRESENTED BY ITS MANAGING PARTNER. 2. K.B.MALIK, PARTNER, MEDICON ENTERPRISES, 43-A, HUDA COMPLEX, ROHTAK, HARYANA - 124001. BY ADV. SRI.D.PEETHAMBARAN SRI.PRASAD GANDHI RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.HINDUSTAN LATEX, LATEX BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM, REPRESENTED BY ITS SUPERINTENDENT (LEGAL) SRI.LALU JOSE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3877 OF 2008 =========================== Dated this the 1st day of December,2008 ORDER Revision petitioners are the accused and first respondent the complainant. First petitioner is the firm and second petitioner is the partner representing the firm. Case of first respondent is that towards the amount due from first petitioner Ext.P1 cheque for Rs.1,54,620/- dated 30.4.2002 was issued by second petitioner being the partner of the firm drawn in the account maintained by the Rohtak branch of Oriental Bank of Commerce and when the cheque was presented for encashment, it was dishonoured under Ext.P2 and inspite of Ext.P4 notice served on the petitioners under Ext.P5 they did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioners pleaded not guilty. Learned Chief Judicial Magistrate on the evidence of PW1 and Exts.P1 to P9 on the side of first respondent CRRP 3877/2008 2 and DW1 and Exts.D1 to D3 on the side of the revision petitioners found the petitioners guilty. They were convicted for the offence under section 138 of Negotiable Instruments Act. First petitioner was sentenced to a fine of Rs.5000/- and second petitioner to simple imprisonment for six months and a fine of Rs.5000/- and also a compensation of Rs.1,54,620/-. Petitioners challenged the conviction and sentence before Sessions Court, Thiruvananthapuramin Crl.A,472/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for revision petitioners was heard. 3. Learned counsel submitted that revision petitioners are not challenging the conviction but sentence may be modified. Learned counsel also sought three months time to pay the amount covered by the dishonoured cheque. So long as the sentence is not varied or modified against the interest of CRRP 3877/2008 3 first respondent, it is not necessary to issue notice to first respondent. 4. The courts below on appreciating the evidence in the proper perspective found that Ext.P1 cheque was issued by first revision petitioner firm towards repayment of Rs.1,54,620/- due and the cheque was issued for the first petitioner by the second petitioner. That factual findings are in accordance with the evidence and warrants no modification. Evidence also establish that the cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act is perfectly legal. 5. Then the question is regarding the sentence. Learned Magistrate sentenced first petitioner to a fine of Rs.5000/-. That sentence is perfectly reasonable and warrants no interference. As against second petitioner, the sentence is not legal. Learned Magistrate awarded a substantive sentence of simple imprisonment for six months and CRRP 3877/2008 4 a fine of Rs.5000/- and also directed to pay a compensation of Rs.1,54,620/- the amount covered by Ext.P1 cheque. When fine forms part of the sentence, under sub section (1) of Section 357 compensation could only be either the whole or part of the fine. Compensation under sub section (3) of Section 357 can be awarded only if fine does not form part of the sentence. When learned Magistrate sentenced second petitioner to pay a fine of Rs.5000/-, in view of sub section (3) of Section 357 of Code of Criminal Procedure compensation could not have been awarded except to the extent of fine. Unfortunately learned Sessions Judge did not take note of this illegality. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified as against second revision petitioner to imprisonment till rising of the court and a fine of Rs.1,70,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.1,60,000/- to be paid to first respondent as compensation under section 357 CRRP 3877/2008 5 (1)(b) of Code of Criminal Procedure. Revision is allowed in part. Conviction of revision petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence as against first petitioner is also confirmed. The sentence as against the second petitioner is modified as follows:- Second petitioner is sentenced to imprisonment till rising of court and a fine of Rs.1,70,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.1,60,000/- is to be paid to first respondent as compensation under section 357 (1) (b)of Code of Criminal Procedure. Second petitioner is granted three months time to pay the fine. Second petitioner is directed to appear before the Addl.Chief Judicial Magistrate, Thiruvananthapuram on 4.3.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006