IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 3345 of 2008() ------------------------------ CRA.140/2007 of SESSIONS COURT, MANJERI. CC.423/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVISION PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------------------------------ ABDUL NAWAS, S/O. MARAKKAR, THAYYIL HOUSE, CHERAKKAPARAMBHA P.O., ANGADIPURAM VILLAGE, PERINTHALMANNA TALUK. BY ADV. SRI.K.ANAND RESPONDENTS:RESPONDENTS/STATE & COMPLAINANT: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,. 2. V.MUHAMMED, S/O MAMMATHAN HAJI, VAKKATTIL HOUSE, ANGADIPURAM P.O. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3345 OF 2008 =========================== Dated this the 7th day of October,2008 ORDER Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act by Judicial First Class Magistrate,II, Perinthalmanna in C.C.423/2005. Second respondent is the complainant. Case of the second respondent was that petitioner borrowed Rs.45,000/-on 10.12.2004 and towards its repayment issued Ext.P1 cheque drawn on his account maintained in Angadipuram Branch of Federal Bank on 15.1.2005 . When he presented the cheque for encashment through Indian overseas Bank, under Ext.P2 memo, it was dishonoured. Second respondent sent a notice demanding the amount covered by the dishonoured cheque. It was received by the petitioner. But he failed to pay the amount and CRRP 3345/2008 2 thereby committed the offence under section 138 of N.I. Act. Petitioner pleaded not guilty. 2. Second respondent was examined as PW1 and Exts.P1 to P4 were marked. Petitioner did not adduce any evidence. Case of petitioner at the time of cross examining PW1 and questioning under section 313 of Code of Criminal Procedure was that Ext.P1 cheque was issued by the brother of second respondent and he did not commit any offence. 3. Learned Magistrate on the evidence found him guilty and convicted and sentenced him to simple imprisonment for one week and a compensation of Rs.45,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before the Sessions Court, Manjeri in Crl.A.140/07. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court, in addition to compensation of Rs.45,000/- with a default sentence of three months. The conviction and sentence is challenged CRRP 3345/2008 3 in this revision petition. 4. Learned counsel appearing for petitioner was heard. 5. The argument of the learned counsel is that courts below did not properly appreciate the evidence and from the evidence it should have been found that Ext.P1 cheque was not issued towards discharge of any existing liability and instead was issued by brother of the second respondent and in such circumstance the conviction is not sustainable. It was also argued that in any case sentence awarded is excessive and because of his financial conditions petitioner may be granted three months time to pay the amount due. 6. On hearing the learned counsel and on going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though petitioner raised a contention that Ext.P1 cheque was not issued by the second respondent, but by his brother on account of a vehicle transaction, no evidence was adduced and no CRRP 3345/2008 4 material was elicited even to probabilise the case. On the other hand, evidence of PW1 which was accepted by the learned Magistrate and learned Sessions Judge prove that petitioner had borrowed Rs.45,000/-from him and issued Ext.P1 cheque towards its repayment. Evidence also establish that when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities provided under section 138 and 142 of N.I Act. Conviction of the petitioner for the offence under section 138 of N.I.Act is perfectly legal and regular. 7. Then the only question is with regard to the sentence. Though learned Magistrate awarded substantive sentence of imprisonment for seven days, in addition to the compensation, learned Sessions Judge modified it to imprisonment till rising of the court in addition to the compensation. But both the courts have awarded a default sentence for the compensation awarded under CRRP 3345/2008 5 section 357(3) of Code of Criminal Procedure. In view of the declaration of law by the Apex Court, it is not possible to award a default sentence for the compensation awarded under section 357(3) of Code of Criminal Procedure. In such circumstance, sentence to that extent warrants modification. 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 and in default simple imprisonment for two months. Criminal Revision Petition is allowed in part. Conviction for the offence under section 138 of N.I. Act is confirmed. Petitioner is sentenced 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 three months. On realisation of the fine, it is to be paid to the second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the learned CRRP 3345/2008 6 Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/-