IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3600 of 2008() ------------------------------ CRA.84/2006 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.61/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MURALEEDHARAN NAIR, LAKSHMI NIVAS, PATHIYOOR EAST, PATHIYOOR VILLAGE. BY ADV. SRI.T.H.ABDUL AZEEZ ADV. SRI. K.P. MAJEED RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ------------------- 1. S.K. VIJAYAKUMAR, KARUKASSERIL VEEDU, KEERIKKADU VILLAGE, KAYAMKULAM POST, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 ADV.SRI.P.SREEKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3600 OF 2008 ------------------------------------------ Dated this the 2nd day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C. 61 of 2004 on the file of Judicial First Class Magistrate, Kayamkulam. Petitioner was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.75,000/- and in default simple imprisonment for two months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Additional Sessions Court, Mavelikkara in Crl. Appeal 84 of 2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel, in view of the concurrent finding and the evidence on record, submitted that revision petitioner is not challenging the conviction, but sentence may be modified and time may be granted to pay the amount covered by the CRRP3600/08 2 dishonoured cheque. 4. On going through the judgments of the Courts below, I find no reason to interfere with the conviction. Though petitioner raised a contention that Ext.P1 cheque was not issued to the first respondent but to one Gopalakrishnan, who was examined as DW2, learned Magistrate as well as learned Sessions Judge on appreciation of evidence disbelieved that case and found that Ext.P1 cheque was issued by revision petitioner to the first respondent in discharge of existing liability. The said finding is in accordance with the evidence and warrants no interference. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.75,000/-. Learned Magistrate awarded a substantive sentence of imprisonment for one year in addition to a compensation of Rs.75,000/-. Learned Sessions Judge confirmed the same. Considering the entire facts and CRRP3600/08 3 circumstances of the case interest of justice will be met if the sentence is modified to imprisonment till rising of Court and a fine of Rs.75,000/- and in default simple imprisonment for three months. On realisation of fine, it is to be paid to first 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 the Court and a fine of Rs.75,000/- and in default simple imprisonment for three months. On realisation of fine, it is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is granted four months time from today to pay the fine. Petitioner is directed to appear before the Magistrate on 4.4.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-