IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Crl.Rev.Pet.No. 3957 of 2008() ------------------------------ CRA.320/2007 of III ADDL.SESSIONS COURT, ERNAKULAM CC.607/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER(S): PETITIONER/ACCUSED --------------------------------------- N.D.JOSEPH, AGED 47 YEARS, C-FLAT 46, FACT QUARTERS, UDYOGAMANDAL P.O., ELOOR, ERNAKULAM DIST. BY ADV. SRI.KRISHNADAS P. NAIR SRI.HARIDAS P.NAIR SMT.K.L.SREEKALA SRI.M.A.VINOD SRI.M.RAJESH KUMAR RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. 2. PAUL JOSE, S/O.P.C.JOSE, PEEDIAKKAL AUTO SERVICE CENTRE, EDAPPALLY P.O. KOCHI - 682 024. BY PP SRI MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3957 OF 2008 ............................................ DATED THIS THE 15th DAY OF JANUARY, 2009 ORDER Revision petitioner is the accused and second respondent, the complainant in C.C.607 of 2004 on the file of Judicial First Class Magistrate-II, Aluva. Revision petitioner was convicted and sentenced for the offence under Section 138 of N.I.Act. Revision petitioner challenged the conviction before Sessions Court, Ernakulam in Crl.A.320 of 2007. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to imprisonment till rising of court and a compensation of Rs.22,000/-. Revision petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel argued that when the case was pending before the Magistrate, revision petitioner had paid Rs.5000/- to first respondent evidenced by Annexure -C receipt produced along with the revision petition on 15.1.2007 and evidenced by Annexure B, he had deposited Rs.7500/- before the Magistrate when the appeal was pending and in spite of the deposit and payment, revision petitioner was directed to pay a compensation of Rs.22,000/- without taking into consideration the deposit and payment. Learned counsel submitted CRRP 3957/2008 2 that in view of the evidence on record and the concurrent findings of courts below, revision petitioner is not challenging the conviction, but the sentence may be modified and revision petitioner may be directed to pay only the balance amount. 3. On hearing the learned counsel and going through the judgments of courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner purchased a Maruti Car for Rs.57,000/- and made a cash payment of Rs.35,000/- and issued Ext.P1 cheque for the balance amount, which was dishonoured when presented for encashment. It is also proved that the dishonour was for want of sufficient funds and second respondent had complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court, in addition to a direction to pay the compensation of Rs.22,000/-, the amount covered by the dishonoured cheque. The argument of the learned counsel is that revision petitioner had already deposited Rs.7500/- before the learned Magistrate when the appeal was pending and had made a payment of Rs.5000/- directly to CRRP 3957/2008 3 second respondent when the case was pending before the Magistrate and this was not given deduction. If revision petitioner has deposited any amount before the learned Magistrate as stated by him, he need deposit only the balance as the said deposit can be treated as towards the compensation directed to be paid by revision petitioner. If revision petitioner made any payment to second respondent as claimed in Annexure C receipt, he need not deposit that amount again but it is made clear that it is for the revision petitioner to establish the payment evidenced by Annexure C. Revision petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE lgk