IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 457 of 2000(A) ---------------------------------------- CC.42/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY CRA.295/1998 of SESSIONS COURT, THRISSUR PETITIONER/ REVN. PETITIONER: ------------------------------------------------- DAYANANDAN, S/O.ALIKKARA MADHAVAN, CHITTANDA VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SMT.MINI JOHN PAREMALIL RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1) NARAYANAN NAMBIAR, S/O.THATHRI NANGIYAR, 'VYSHAKAM', NEAR GIRLS HIGH SCHOOL, WADAKKANCHERY, THRISSUR. 2) STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *3) V. KAMALAVATHY AMMA, RETD.HEADMISTRESS, W/O.LATE NARAYANAN NAMBIAR, 'VAISAKHAM', G.H.S.ROAD, WADAKKANCHERY, THRISSUR. 4) V.ANITHA, D/O.LATE NARAYANAN NAMBIAR, 'VAISAKHAM', G.H.S.ROAD, WADAKKANCHERY, THRISSUR. * (R3 & R4 ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DATED 17-9-2008 IN Crl.M.P.No.529/2002) ADV. SRI.T.SETHUMADHAVAN FOR R1, ADDL.R3& R4 PUBLIC PROSECUTOR SRI.K.C. SANTHOSH KUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ========================================== Crl.Revision Petition No.457 of 2000(A) ========================================== Dated this the 17th day of September, 2008 O R D E R The revision petitioner stands convicted and sentenced for commission of offence punishable under Section 138 of Negotiable Instruments Act. The allegation against him that he issued a cheque for Rs.40,000/- in discharge of legal enforceable debt and that the said cheque was dishonoured on presentation on the ground of insufficiency of funds in the account. 2. The complainant gave evidence as PW1 and the Manager of the drawee bank was examined as PW2. The cheque in question, namely Exhibit P1; Exhibit P2 memo of dishonour, notice of demand, postal receipt and non- satisfaction of outstandings are proved. Exhibit P6 extract of the bank account is also on record. With this material, the accused in his statement under Section 313 of Cr.P.C. said that his liability was only to the extent of Rs.15,000/- and nothing more. Crl.Rev.Pet.No.457/2000 - 2 - 3. The learned Magistrate, on consideration of the amounts and rival contentions, found the accused guilty and convicted and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a further period of three months. 4. The Court of Session confirmed the finding of guilt and the order of conviction. However, it modified the sentence by reducing the period of imprisonment by 5 days and directing payment of compensation of Rs.45,000/- and also default sentence of simple imprisonment for a period of three months on failure of payment of compensation. 5. Having heard the learned counsel for both the parties and perused the materials as noticed above, particularly the fact that the issuance of Exhibit P1 Crl.Rev.Pet.No.457/2000 - 3 - cheque is proved by PW1 and the dishonour is proved by PW2 with the support of Exhibits P2 to P6, I am satisfied that the finding of guilt and conviction imposed by the court below do not warrant any interference. However, I am afraid that the imposition of default sentence for non-payment of compensation ordered, cannot be sustained. For the foregoing reasons, confirming the finding of the guilt and order of conviction, the sentence of imprisonment imposed by the Court of Session is confirmed. The order of compensation is also confirmed. But the order of the Court of Session that the accused shall undergo simple imprisonment for a period of three months in default of payment of compensation is vacated. The accused is directed to appear before the Judicial First Class Magistrate, Wadakkanchery on 12th November, 2008 to suffer the sentence, failing which Crl.Rev.Pet.No.457/2000 - 4 - the learned Magistrate will be at liberty to invoke powers under Section 446 of Cr.P.C. against the revision petitioner and sureties. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Skr/17/9