IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 Crl.Rev.Pet.No. 525 of 2004 --------------------------------------------- CC.703/2000 of JFCM-II, THODUPUZHA .................... REVN. PETITIONER/COMPLAINANT: BIJU KARUNAKARAN, USHAZIL HOUSE, THODUPUZHA P.O., THODUPUZHA. BY ADV. SRI.V.K.SUNIL RESPONDENTS/STATE & ACCUSED: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH CORUT OF KERALA, ERNAKULAM. 2. P.M.SHERIF S/O. MUHAMMED IBRAHIM, ELAVUMCHOOTTIL HOUSE, THODUPUZHA EAST P.O. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R1 ADV. SRI.T.A.UNNIKRISHNAN FOR R2 SRI.P.P.THAJUDEEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.525 of 2004 -------------------------- ORDER Petitioner, the complainant, in C.C.No.703/2000 on the file of Judicial First Class Magistrate's Court-II, Thodupuzha, filed this revision challenging the sentence awarded by the learned Magistrate for the offence under Section 138 of Negotiable Instruments Act contending that the sentence awarded is disproportionate to the offence. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that the sentence for an offence to be awarded by a court cannot be mockery and when Section 138 of Negotiable Instruments Act provides for substantive sentence and fine, which could be double the amount covered by the dishonoured cheque, having found the second respondent/accused CRRP 525/04 2 guilty of the offence, learned Magistrate should not have been lenient to award imprisonment till rising of court and compensation without a default sentence. 4. Exhibit P1, the dishonoured cheque, was for Rs.2,10,000/-. Learned Magistrate, after finding the second respondent guilty of the offence under Section 138 of Negotiable Instruments Act, held that as second respondent is aged only 29 years, imprisonment to jail is to be avoided. He was sentenced to imprisonment till rising of court and a compensation of the amount covered by the dishonoured cheque without default sentence. It is submitted that in spite of the conviction as early as 29.8.2003, second respondent did not pay the compensation and in such circumstances, the sentence warrants interference. 5. Exhibit P1 cheque was issued on 28.6.2000. It was dishonoured on 29.6.2000. Complaint was lodged in the same year. Though learned Magistrate CRRP 525/04 3 found the second respondent guilty and convicted him for the offence under Section 138 of Negotiable Instruments Act, he was sentenced only to imprisonment till rising of court and a compensation for the amount covered by the dishonoured cheque without a default sentence. Leniency cannot be shown at the peril of the system. When second respondent was found guilty of the offence under Section 138 of Negotiable Instruments Act and was sentenced only to imprisonment till rising of court, learned Magistrate, at least, should have awarded default sentence. As it is not awarded and the sentence awarded is not at all reasonable or proper, it warrants interference. Revision is allowed. Second respondent/accused in C.C.No.703/2000 on the file of Judicial First Class Magistrate's Court-II, Thodupuzha is sentenced to imprisonment till rising of court and a compensation of Rs.2,10,000/- and in default, CRRP 525/04 4 simple imprisonment for three months. Second respondent is at liberty to pay the compensation directly to the petitioner and produce the receipt before the learned Magistrate and establish that compensation is paid on the date of his appearance for undergoing the sentence of imprisonment till rising of court. Judicial First Class Magistrate- II, Thodupuzha is directed to execute the sentence. 1st June, 2010 (M.Sasidharan Nambiar, Judge) tkv