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2011 Supreme(Ker) 1110

IN THE HIGH COURT OF KERALA
S.S. SATHEESACHANDRAN, J.
T. Samuel - Appellant
Versus
Elsykutty Philip and another - Respondents
Criminal R.P. No. 3437 of 2009
Decided On : 24-10-2011

Advocates Appeared:
For the Appellant : D. Kishore
For the Respondents: Sabu Sreedharan (P.P.)

Headnote:

Code of Criminal Procedure, 1973 - Sections 397 and 401 - Complainant has filed a revision questioning the inadequacy of the sentence awarded - Substantive term of imprisonment as part of the sentence is warranted against the accused - As he has dragged on the proceedings for several years is the case of the complainant to sustain the revision - Held, In default of his appearance and non-payment of the compensation - The learned Magistrate shall execute the sentence taking appropriate steps in accordance with law - Appeal dismissed.

ORDER :

S.S. Satheesachandran, J.

1. The accused, who has been convicted of the offence u/s 138 of the Negotiable Instruments Act, for short, the 'N.I Act', concurrently by the two courts below has filed Crl.R.P. No. 3437 of 2009 and also Crl.M.C. No. 171 of 2010. Complainant in the cheque case questioning the sentence imposed on the accused as inadequate, has filed the other revision, Crl.R.P. No. 3595 of 2009.

2. Crl.M.C. No. 171 of 2010 filed by the accused is directed against modification of the sentence by the learned Sessions Judge enhancing the quantum of compensation to Rs. 7,50,000/- from Rs. 50,000/- awarded by the learned Magistrate, upholding the challenge raised thereto by the complainant filing a revision Crl.R.P. No. 20 of 2008, which was heard and disposed along with the appeal, Crl.A. No. 138 of 2008, challenging his conviction by the learne 4 Magistrate. The accused, no doubt, could have challenged the propriety, legality and correctness of the enhancement of the sentence in his ie vision, Crl. R.P.No, 3437 of 2009. Since the learned Sessions Judge had disposed of his appeal with that of the revision of the complainant as aforesaid under a common judgment, no separate M.C. as such was required at the instance of the accused to challenge the enhancement of compensation awarded as indicated above by the learned Sessions Judge.

3. Complainant has filed a revision Crl.R.P. No. 3595 of 2009 dissatisfied with the punishment of imprisonment till rising of the court and compensation awarded by the learned Sessions Judge while confirming, the conviction against the accused. Substantive term of imprisonment as part of the sentence is warranted against the accused as he has dragged on the proceedings for several years is the case of the complainant to sustain the revision. She had questioned the inadequacy of the sentence awarded by the learned Magistrate filing a revision Crl.R.P. No. 20 of 2008 before the learned Sessions Judge and that was disposed of with the appeal of the accused confirming the conviction and enhancing the quantum of compensation. In view of the interdiction under sub section (3) of Section 399 of the Code of Criminal Procedure, no further proceedings by way of revision at the instance of the complainant is entertainable, and as such, Crl.R.R No. 3595 of 2009 filed by the complainant is only to be dismissed, and I do so.

4. The case of the complainant is that towards discharge of a loan of Rs. 6,50,000/-availed from her, the accused, three years later, issued Ext.P1 cheque for Rs. 7 lakhs. That cheque, on presentation, was due to insufficiency of funds in the account maintained by the accused. Statutory notice issued intimating dishonour not being responded with reply or payment, she filed the complaint to prosecute him for the offence u/s 138 of the N.I.Act. The accused, resisting the prosecution, set up a plea of discharge producing a receipt (Ext.D3) contending that after the dishonour of the cheque but before the issue of the notice, he had discharged the liability by payment. The liability then outstanding and discharged by payment was only Rs. 6,50,000/-, after periodical payment of interest over the loan transaction, which, according to him, had been obtained issuing a blank signed cheque. The genuineness of Ext.D3 receipt being disputed by the complainant, it was sent over to the Forensic Science Laboratory with the admitted writings and signatures collected from the complainant. Complainant had also moved for determination of the age of the type writings and signatures in the document. The scientific expert, after examining the documents, had sent Ext.D7 report stating that the writings in ink and signatures tallied with that of the admitted writings and signatures of the complainant. He, therefore, opined that the questioned writings and signature in the document were by the complainant. So far as the queries raised by the complainant for determination of the age of typed writings, signatures













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