IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3959 of 2008() ------------------------------ CRA.4/2007 of ADDL. SESSIONS COURT (ADHOC), MAVELIKKARA CC.647/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- KARUNAKARAN, S/O.PAPPU, KARUNALAYAM HOUSE, PERINGALA MURI, KAYAMKULAM VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.THAMBAN, S/O.SANKARAN, AAYIRATHU VEEDU, PUTHUPALLY VADAKKUMURI, PUTHUPPALLY VILLAGE. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3959 OF 2008 ------------------------------------------ Dated this the 5th day of December, 2008 O R D E R Revision petitioner is the accused and second respondent the complainant in C.C.647 of 2006 on the file of Judicial First Class Magistrate, Kayamkulam. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. It was challenged before Additional Sessions Court, Mavelikkara in Crl. Appeal 4 of 2007. Learned Additional Sessions Judge on reappreciation on evidence confirmed the conviction but modified the sentence to simple imprisonment for three months and a compensation of Rs.50,000/- and in default simple imprisonment for three months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the evidence on record and concurrent findings, revision petitioner is not challenging the conviction but sentence may be modified CRRP3959/08 2 and revision petitioner may be granted time to pay the amount covered by dishonoured cheque. 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.50,000/- and towards its repayment issued Ext.P1 cheque and it was dishonoured for want of sufficient funds and second respondent demanded the amount within the statutory period by sending Ext.P4 notice and revision petitioner after receiving the same did not pay the amount and thereby committed the offence under section 138 of N.I. Act. Second respondent had complied with all the statutory formalities. Hence conviction of the petitioner for the offence under section 138 is perfectly legal. 5. Then the question is regarding the sentence. 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. 6. Ext.P1 cheque is for Rs.50,000/- and was issued on 10.6.2006. Considering the entire facts and circumstances of the case interest of justice will be met if the sentence is modified to imprisonment till rising of Court in addition to a fine of CRRP3959/08 3 Rs.55,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.50,000/- to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision is Allowed in part. Conviction of the 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.55,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.50,000/- is to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision petitioner is granted three months time from today to pay the fine. Revision petitioner is directed to appear before Judicial First Class Magistrate on 6.3.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-