IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 3546 OF 2008() ------------------------------ CRA.616/2002 OF SESSIONS COURT, THALASSERY CC.280/2001 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- A.T. HASHIM, S/O.KUNHAHAMMED, AGED 52 YEARS, RESIDING AT ALAVIL, KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.P. SHAMEER, S/O. MUSTAFA, SADULI PALLI, P.O. KOTTALI, KANNUR DISTRICT. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3546 OF 2008 ------------------------------------------ Dated this the 4th day of November, 2008 O R D E R Revision petitioner is the accused and second respondent the complainant in C.C.280 of 2001 on the file of Judicial First Class Magistrate-I, Kannur. Case of the first respondent was that towards the repayment of Rs.6,500/- borrowed by the petitioner, he issued Ext.P1 cheque dated 15.4.2000 drawn in the account maintained by him in Kannur Branch of South Indian Bank. When the cheque was presented for encashment, under Ext.P2 it was dishonoured for want of sufficient funds. In spite of Ext.P3 notice served on the petitioner, under Ext.P5, he did not pay and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. On the evidence of first respondent as PW1 and Exts.P1 to P5 and a witness on the side of petitioner as DW1, learned Magistrate convicted and sentenced petitioner to simple imprisonment for six months and a compensation of Rs.6,500/-. Petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl. Appeal 616 of 2002. Learned CRRP3546/08 2 Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel did not challenge the conviction but submitted that the sentence awarded is harsh and even though the amount covered by the dishonoured cheque is only Rs.6,500/-, Courts below sentenced the petitioner to undergo simple imprisonment for six months. So long as the sentence is not varied or modified against the interest of second respondent, it is not necessary to issue notice to him. 4. Evidence of PW1 and DW1 were properly appreciated by the Courts below. It is established that Ext.P1 cheque was issued towards repayment of Rs.6,500/- borrowed earlier. It is also proved that Ext.P1 cheque was dishonoured for want of sufficient funds and second respondent had complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. Conviction of the petitioner for offence under section 138 is perfectly legal. 5. Then the only question is with regard to the sentence. When the amount covered by the dishonoured cheque is only CRRP3546/08 3 Rs.6500/- the sentence of simple imprisonment for six months apart from compensation for the amount covered by the dishonoured cheque is definitely harsh. Interest of justice will be met if the sentence is modified to imprisonment till rising of Court and fine. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of Court and fine of Rs.7,000/- and in default simple imprisonment for one month. On realisation of fine Rs.6,500/- is to be paid to second respondent as compensation under section 357(1) of Cr.P.C. Petitioner is directed to appear before learned Magistrate on 16.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-