IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 3326 OF 2008() ------------------------------ CRA.479/2004 OF ADDL.SESSIONS COURT (ADHOC)III, THIRUVANANTHAPURAM CC.151/2002 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: --------------------- 1. JAYACHANDRAN NAIR, PRESIDENT, NO.412, TSXI DRIVER'S CO-OPERATIVE SOCIETY LTD., EDAPAZHANJI JUNCTION, THIRUVANANTHAPURAM. 2. C.VIJAYAKUMAR, SECRETARY, NO.412, TAXI DRIVER'S CO-OPERATIVE SOCIETY LTD., EDAPAZHANJI JUNCTION, THIRUVANANTHAPURAM. 3. TAXI DRIVER.S CO-OPERATIVE SOCIETY LTD.NO.412, EDAPAZHANJI JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, C. VIJAYAKUMAR. BY ADV. SRI.RAJESH P.NAIR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------ 1. P.M. ABDUL AZEEZ, GREEN VIEW, PALLISTAN ROAD, IYYANTHOLE, TRICHUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3326 OF 2008 ------------------------------------------ Dated this the 24th day of November, 2008 O R D E R Revision petitioners are the accused in C.C. 151 of 2002 on the file of Judicial First Class Magistrate, Thiruvananthapuram. First respondent is the complainant. Petitioners were convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Petitioners challenged the conviction and sentence before Additional Sessions Court, Thiruvananthapuram in Crl. Appeal 479 of 2004. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court as against petitioners 1 and 2 in addition to a fine of Rs.1,15,000/- as against petitioners 1 to 3. The conviction and sentence is challenged in this revision. 2. Third petitioner is Taxi Driver's Co-operative Society and petitioners 1 and 2 are respectively its President and Secretary. Case of first respondent was that in order to discharge the liability to first respondent under the money deposit scheme as well as arrears of rent Ext.P1 cheque for CRRP3326/08 2 Rs.1,05,330/- drawn in the account of third petitioner in Thiruvananthapuram District Co-operative Bank was issued by petitioners 1 and 2 as the President and Secretary of the Society. The cheque was dishonoured for want of sufficient funds under Ext.P2. In spite of Ext.P3 notice received by petitioners under Ext.P5, the amount was not paid and they thereby committed the offence under section 138 of Negotiable Instruments Act. The petitioners had no consistent case. The case spoken to by the second petitioner when examined as DW1 was that a cheque for Rs.80,000/- was given to the first respondent as balance of advance amount and later it was stated that it was a blank cheque. The learned Magistrate on the evidence found that Ext.P1 cheque was issued in discharge of the liability due to first respondent under the money deposit scheme as well as arrears of rent. Learned Magistrate accepting the evidence of PW1 and disbelieving the evidence of DW1 found that Ext.P1 cheque was issued towards discharge of the outstanding liability. Learned Sessions Judge on reappreciation of evidence confirmed the same. Though in the revision, said findings were challenged, learned counsel submitted that petitioners are not challenging the conviction, but sentence may CRRP3326/08 3 be modified and time may be granted to pay the fine. So long as the sentence is not modified or varied as against the interest of first respondent, it is not necessary to issue notice to first respondent. 3. On going through the judgments of the Courts below, I find no reason to interfere with the factual findings. It is proved that Ext.P1 cheque was issued towards discharge of the existing liability and it was dishonoured for want of sufficient funds and first respondent complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. Ext.P1 cheque was issued by petitioners 1 and 2 in discharge of the liability of the third petitioner. Therefore Courts below rightly convicted all the petitioners for the offence under section 138 of N.I. Act. It is perfectly legal. 4. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of Court as against petitioners 1 and 2 in addition to a fine of Rs.1,15,000/- as against petitioners 1 to 3 with a direction to pay compensation of Rs.1,10,000/-, out of the fine realised to first respondent. I find no reason to interfere with the sentence of imprisonment till rising of Court as against the petitioners 1 CRRP3326/08 4 and 2. As Ext.P1 cheque is only for Rs.1,05,330/- interest of justice will be met if the sentence of fine is modified to Rs.55,000/- each as against petitioners 1 and 2 and in default simple imprisonment for two months and a fine of Rs.10,000/- as against the third petitioner. Revision is allowed in part. Conviction of the petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified as follows. Petitioners 1 and 2 are sentenced to imprisonment till rising of Court and a fine of Rs.55,000/- each and in default simple imprisonment for two months each. Third petitioner is sentenced to a fine of Rs.10,000/-. On realisation of fine Rs.1,10,000/- is to be paid to first respondent as compensation under section 357 (1) of Cr.P.C. Petitioners are granted two months time, from today, to pay the fine. Petitioners 1 and 2 are directed to appear before Chief Judicial Magistrate on 27.1.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-