JOSEPH KONDODY Vs. MICHAEL KURUVILLA

JUDGEMENT

(1.) This petition is filed by the respondent in Crl. Appeal No. 470/94 under S.482 of the Cr.P.C. praying to afford the petitioner an opportunity of being heard on the question of sentence and to modify the order of sentence as deemed just and proper by this Court.

(2.) The petitioner was the accused in C.C.No. 40/93 on the file of the Judicial First Class Magistrate's Court, Changanassery wherein he was prosecuted for the offence punishable under S.138 of the Negotiable Instruments Act on the basis of the complaint filed by the respondent. After trial the lower court found the petitioner was not guilty of the offence punishable under S.138 of the Negotiable Instruments Act, acquitted and set him at liberty, by judgment dated 21.1.1994. The respondent herein preferred Crl. Appeal No. 470/94 before this Court challenging the order of acquittal. This Court after hearing both sides, by judgment dated 5.2.1998 reversed the findings of the lower court, found the petitioner guilty of the offence punishable under S.138 of the Act and convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 3000/- in default of payment to undergo simple imprisonment for a period of one month. The petitioner has filed this petition to modify the sentence awarded by this Court after affording an opportunity to be heard regarding the question of sentence under S.482 of the Crl. P.C.

(3.) The counsel for the petitioner vehemently submitted that the petitioner was not heard by this Court before awarding sentence and the counsel for the petitioner did not get an opportunity to bring to the notice of this Court the provisions of S.360 and 361 of the Cr.P.C. and to consider whether the petitioner can be dealt with under those benevolent provisions of law. Therefore, according to him, in order to meet the ends of justice the benevolent provisions of S.360 and 361 of the Cr.P.C. or S.4 of the Probation of Offenders Act should be invoked and the sentence passed against the petitioner should be kept in abeyance during the period of probation that may be determined by this Court.