IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 1418 of 2008() ------------------------------ CRA.37/2006 of ADDL. SESSIONS COURT, (ADHOC-I), PALAKKAD ST.1794/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- GEETHAMOL. M., W/O.SUNILKUMAR, KUNNEKKAD HOUSE, THENKURISSI, ALATHUR, PALAKKAD. BY ADV. SRI.P.R.VENKETESH SRI.R. AZAD BABU SRI. P.R. RAJA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------------------------------- 1. CHENTHAMARAKSHAN, S/O.SEKHARAN, MELEKAVARATHOTTIL HOUSE, NANNIYODE, PATTANCHERY, PALAKKAD. 2. STATE REPRESENTED BY GOVERNMENT PLEADER, PALAKKAD. ADV. SRI.SANTHEEP ANKARATH FOR R1 SRI.V.C.MADHAVANKUTTY FOR R1 PUBLIC PROSECUTOR SRI.C.M.NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 1418 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in S.T. 1794 of 2004 on the file of Judicial First Class Magistrate, Chittur. First respondent lodged the complaint contending that petitioner and her husband purchased paddy and towards that transaction Rs.40,000/- was due and towards its payment petitioner issued Ext.P1 cheque drawn in her account maintained in Thenkurussi branch of Punjab National Bank dated 8.12.2003. When Ext.P1 cheque was presented for encashment, through the account maintained by first respondent in Canara Bank, under Ext.P2 it was dishonoured. First respondent sent Ext.P4 notice demanding the amount covered by Ext.P1. Petitioner received the same but failed to pay and instead sent Ext.P6 reply and thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. First respondent was examined as PW1. Ext.P1 to P6 were marked. Learned Magistrate on the evidence found petitioner guilty. He was convicted and sentenced to CRRP1418/08 2 simple imprisonment for three months and a compensation of Rs.45,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction before Sessions Court, Palakkad in Crl.Appeal 37 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of Court. Direction to pay compensation was confirmed. Revision is filed challenging the same. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Along with the revision, petitioner filed Crl. Appeal 4229 of 2008 for suspending the sentence. While suspending the sentence petitioner was directed to deposit Rs.25,000/-. But petitioner did not deposit that amount. Learned counsel appearing for petitioner submitted that the revision may be disposed granting three months time to pay the amount as directed by the Courts below. 4. Evidence of PW1 establishes that Ext.P1 cheque was issued by the revision petitioner towards the value of paddy jointly purchased by petitioner and her husband. Ext.P2 CRRP1418/08 3 establishes that the cheque was dishonoured for want of sufficient funds. Ext.P4 establishes that first respondent has complied with the statutory formalities. In such circumstances I find no reason to interfere with the conviction for the offence under section 138 of N.I. Act, which is perfectly legal. 5 Then the question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of Court and confirmed the compensation with a default clause. When compensation is awarded under section 357(3) of Cr.P.C. there cannot be a default sentence. But that defect can be cured by converting compensation to fine. Interest of justice will be met if the sentence is modified to imprisonment till rising of Court and a fine of Rs.45,000/- to be paid within three months from today and in default simple imprisonment for two months. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. Sentence is modified to imprisonment till rising of Court and a fine of Rs.45,000/- to be paid within three months from today and in default simple imprisonment for two months. On realisation of CRRP1418/08 4 fine it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before Judicial First Class Magistrate, Chittur on the expiry of three months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-