IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1364 of 2001() ------------------------------ CC.15/1996 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA CRA.164/1998 of SESSIONS COURT, KOZHIKOE .................... REVN. PETITIONER(S): RESPONDENT/COMPLAINANT --------------------- V.P.ASOKAN, S/O GOPALAN VALIYAPARAMBATH HOUSE P.O. MEPPAYIL, VADAKARA TALUK BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): APPELLANT/ACCUSED --------------- 1. K.CHANDRAN, S/O CHAPPAN KATTANAVIDA HOUSE NUT STREET VADAKARA 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1364 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009 ORDER Revision petitioner is the complainant in C.C.No.15/1996 of Judicial First Class Magistrate Court, Vadakara . Revision first respondent is the accused therein. The accused was convicted under Section 138 of Negotiable Instruments Act by the learned Magistrate and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 50,000/- to the complainant. On appeal by the accused, the lower appellate court confirmed the conviction, but modified the sentence to the effect that accused was sentenced to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for one month. The complainant has come up in revision challenging the sentence imposed by the lower appellate court. 2. The case of the revision petitioner/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that for Rs. 50,000/- due the complainant from the accused, the accused issued the cheque Ext.P1 dated October 17, 1995 for Crl.P.C.No.1364/01 Page numbers Rs. 50,000/- drawn on the Vadakara branch of Syndicate Bank which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P3 dated October 31, 1995, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the trial court recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the revision petitioner/complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that he has already paid the amount due under the cheque and that the complainant did not return the cheque and misused the same and filed this complaint. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced Crl.P.C.No.1364/01 Page numbers him as aforesaid. On appeal, the lower appellate court confirmed the conviction, but modified the sentence as aforesaid. The complainant has now come up in revision challenging the judgment of the lower appellate court. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act can be sustained ? 2) Whether the sentence imposed by the lower appellate court can be interfered with ? Point No.1 6. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant to prove the guilt of the accused. The trial court has found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act which is confirmed in appeal. The accused has not filed any revision challenging his conviction. Therefore, the conviction of the revision first respondent under Section 138 of Negotiable Instruments Act is confirmed. Crl.P.C.No.1364/01 Page numbers Point No.2 7. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and directed to pay a compensation of Rs. 50,000/-. But the lower appellate court modified the sentence to a fine of Rs.5,000/- . On going through the judgment of the lower appellate court, I find that no reason is stated by the lower appellate court for modifying the sentence. The cheque is for Rs.50,000/-. Further accused has not filed any revision challenging his conviction. Therefore, I feel that a sentence of imprisonment till the rising of court and to pay a compensation of Rs. 50,000/-, in default, to undergo simple imprisonment for one month would meet the ends of justice. In the result, Criminal Revision Petition is allowed. The sentence imposed by the trial court which is modified by the lower appellate court is further modified to the effect that revision first respondent/accused is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 50,000/- to the revision petitioner/complainant, in default to undergo simple imprisonment for Crl.P.C.No.1364/01 Page numbers six months as provided under Section 357(3) Cr.P.C. The revision first respondent shall surrender before the trial court on or before 30-12-2009 to receive the sentence. One month's time is granted for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.P.C.No.1364/01 Page numbers