IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 316 of 2009() ----------------------------- CRA.854/2007 of ADDL.DISTRICT & SESSIONS COURT,FAST TRACK (ADHOC II), KOZHIKODE ST.870/2005 of JUDL. FIRSTS CLASS MAGISTRATE COURT V, KOZHIKODE. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- JYOTHEENDRAN.K, S/O.VELAYUDHAN, ATHANIKKAL POST OFFICE, P.O.VALLIKUNNU, VIA. KADALUNDI NAGARAM, MALAPPURAM DISTRICT. BY ADVOCATE MR.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------- 1. P.M.KUNHIKELU, POTTAYIL HOUSE, P.O.MANNUR, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.316 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in S.T.870/2005 on the file of Judicial First Class Magistrate-V, Kozhikode. Revision petitioner was sentenced to simple imprisonment for one month and compensation of Rs.70,000/- and in default simple imprisonment for three months for the offence under Section 138 of Negotiable Instruments Act. Conviction was challenged before Sessions court, Kozhikode in Crl.A.854/2007. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the evidence on record and concurrent findings of fact, revision petitioner is not challenging the conviction but sentence may be modified and revision petitioner CRRP 316/09 2 may be granted six months time to pay the amount. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.70,000/- and issued Ext.P1 cheque towards its repayment. Ext.P1 was dishonoured for want of sufficient funds, when presented for encashment. It is also established that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. So long as the sentence is not altered or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. As per the sentence confirmed by learned Additional Sessions Judge, first respondent is entitled to a compensation of Rs.70,000/- which is the amount covered by the dishonoured cheque. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and fine with a direction to pay CRRP 316/09 3 compensation to first respondent on realisation of fine. 6. Revision is allowed in part. Conviction of 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.72,000/- and in default simple imprisonment for two months. On realisation of fine Rs.70,000/- is to be paid to first respondent as compensation under Section 357 (1)(b) of Code of Civil Procedure. Revision petitioner is granted six months time to pay the fine. Revision petitioner is directed to appear before Judicial First Class Magistrate-V, Kozhikode on 28/7/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.