IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3859 of 2008() ------------------------------ C.C.NO.70/1995 OF JUDL.FIRST CLASS MAGISTRATE COURT-III,THRISSUR CRA NO.547/2006 OF ADDL. SESSIONS COURT, (ADHOC-I) THRISSUR. REVN. PETITIONER(S): PETITIONER/ACCUSED/APPELLANT ----------------------------------------------------------------- T.P.JOHNSON, THALOOPADAN HOUSE, C/O.PRIYA MEDICALS, EAST FORT, THRISSUR. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S): COMPLAINANT/IST RESPONDENT -------------------------------------------------------- 1. SUNNY MATHEW, VADAKKOOT HOUSE, PAVARATTY P.O., THRISSUR DIST. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.PAULOCHAN ANTONY FOR R1 BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3859 OF 2008 =========================== Dated this the 19th day of December,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.70/1995 on the file of Judicial First Class Magistrate Court-III, Thrissur. Revision petitioner was convicted and sentenced to a fine of Rs.50,000/- for the offence under section 138 of Negotiable Instruments Act as per judgment dated 24.4.1996. Revision petitioner challenged the conviction and sentence before Additional Sessions Court, Thrissur in Crl.A.136/1996. First respondent complainant did not challenge the sentence. Learned Sessions Judge as per judgment dated 6.7.1998 confirmed the conviction and sentence. It was challenged before this court in Crl.R.P.587/1998. As per order dated 14.6.2006, this court found that the Magistrate could not have awarded a sentence of fine in excess of Rs.5000/- and in the interest of justice set CRRP 3859/2008 2 aside the sentence and sent the case to the Magistrate for awarding proper sentence. Learned Magistrate thereafter awarded a sentence of fine of Rs.65,000/-. It was challenged before Additional Sessions Court, Thrissur in Crl.A.547/2006. It was confirmed by the Sessions Judge. The order is challenged in this revision. 2. Learned counsel appearing for the revision petitioner and first respondent were heard. 3. The argument of the learned counsel appearing for first respondent is that in the interest of justice, there is no necessity to interfere with the sentence. According to learned counsel, this court remanded the case to the trial court for awarding proper sentence and a sentence of fine of Rs.65,000/- is quite reasonable and there is no reason to interfere with the same. Learned counsel relying on the decision of the Apex Court in P.Suresh Kumar v. R.Shankar (AIR 2007 SC 1774) argued that Supreme Court granted a CRRP 3859/2008 3 compensation of Rs.7 lakhs eventhough the appellate court and the revisional court had reduced the fine to Rs.5000/-. Learned counsel appearing for the revision petitioner pointed out that but for the revision and the appeal by the accused the sentence would remain a fine of only Rs.50,000/- and for the reason that revision petitioner had challenged the conviction and sentence, he shall not be penalised. 4. On hearing the learned counsel on both sides, I find that in the facts and circumstances of the case, sentence of fine of Rs.65,000/- is excessive. The cheque was for Rs.65,000/-. The original sentence was only fine of Rs.50,000/-. The complainant did not challenge sufficiency of the sentence. It was only the accused who challenged the conviction and sentence before Sessions Court. When the appeal was dismissed, it was the accused who preferred the revision. The revisional court found that, if the sentence is reduced to a fine of Rs.5000/-, the maximum fine CRRP 3859/2008 4 which could have been awarded by the Magistrate at that time, it would operate as injustice to the complainant. It is for that sole reason, the sentence was set aside and remanded to the trial court instead of limiting the fine to Rs.5000/-. That does not mean that the accused is to be sentenced for a higher fine, than what was originally awarded when the complainant had not challenged the sentence. In such circumstance, in the interest of justice, revision is disposed reducing the fine to Rs.50,000/- from Rs.65,000/- as awarded by the Magistrate and confirmed by the Sessions Judge. If petitioner has already deposited the amount, first respondent can withdraw the same. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006