IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 3551 of 2008() ------------------------------ CRA.342/2006 of III ADDL.SESSIONS COURT, KOLLAM CC.2185/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KOLLAM .................... REVISION PETITIONER/ACCUSED/APPELLANT: ----------------------------------------------------------- LAILA SHARAF, W/O. SHARAF, BRAHMANAZHIKATHU VEEDU, TOWN LIMIT, KADAPPAKKADA, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K. SHIBU,EDAYATHU VEEDU, THEKKE CHERRY,KANJAVELI, KOLLAM. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R2 PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, JUDGE ------------------------------------------------- CRL.R.P.NO. 3551 OF 2008 -------------------------------------------------- Dated this the 2 nd day of January, 2009 O R D E R Revision petitioner is the accused and second respondent the complainant in C.C. 2185 of 2002 on the file of Judicial First Class Magistrate-I, Kollam. Revision petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.2,50,000/- for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Sessions Court, Kollam in Crl. Appeal 342 of 2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. 3. Learned counsel submitted that in view of the concurrent findings of fact revision petitioner is not challenging the conviction, but the sentence may be modified and time may be granted to pay the amount to second respondent. 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the CRRP 3551/2008 2 conviction. Evidence establish that revision petitioner borrowed Rs.2,50,000/- from second respondent on 1.8.2001 and issued Ext.P1 cheque dated 16.9.2001, drawn in his account, maintained in Kadappakkada branch of Central Bank of India and the cheque when presented for encashment was dishonoured for want of sufficient funds. Evidence also establish that second respondent had complied with the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the question is regarding the sentence. Learned Magistrate awarded a substantive sentence of simple imprisonment for six months, in addition to a compensation of Rs.2,50,000/- with a default sentence of simple imprisonment for two months. Sessions Judge confirmed it. So long as the sentence is not varied or modified against the interest of second respondent, it is not necessary to issue notice to second respondent. Considering the entire facts and circumstances of the case, interst of justice will be met if the substantive sentence is reduced to imprisonment till rising of court and a fine of Rs.2,60,000/- and in default simple imprisonment for three months providing that on realisation of fine Rs.2,50,000/- is to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. CRRP 3551/2008 3 Revision is allowed in part. conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.2,60,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.2,50,000/- is to be paid to second respondent as compensation under section 357(1) of Cr.P.C. Revision petitioner is granted two months time to pay the fine. Revision petitioner is directed to appear before the Magistrate on 3.3.2009. M. SASIDHARAN NAMBIAR, JUDGE okb