IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 3543 of 2008() ------------------------------ CRA.701/2005 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.766/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- AJITHKUMAR, S/O.M.K.GOPINATHAN NAIR, C/O.MADHAVI AMMA, KARUMANCHERY VEEDU PALUVAI DESOM, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT & SRI.RANJIT BABU RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. KARTHIKEYA PAI, ILLATH PARAMBIL HOUSE, MAMMIYOOR DESOM, GURUVAYOOR VILLAGE CHAVAKKAD TALUK. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3543 OF 2008 =========================== Dated this the 4th day of November,2008 ORDER Petitioner is the accused and second respondent the complainant in C.C.766/2003 on the file of Judicial First Class Magistrate, Chavakkad. Case of the second respondent was that petitioner borrowed Rs.75,000/- on 10.2.1999 and towards its repayment issued Ext.P1 cheque dated 30.5.1999 for Rs.40,000/- and another cheque dated 15.6.1999 for Rs.35,000/- drawn in his account maintained in Guruvayur Branch of Lord Krishna Bank and when Ext.P1 cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2. Second respondent sent Ext.P4 notice which was served on the petitioner under Ext.P6, demanding the amount covered under Exts.P1. Petitioner did not pay the same and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not CRRP 3543/2008 2 guilty. Learned Magistrate on the evidence of PW1 and Exts.P1 to P6 found the petitioner guilty. He was convicted and sentenced to rigorous imprisonment for three months and a compensation of Rs.40,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.701/2005. Learned 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 petitioner was heard. 3. Learned counsel for the petitioner submitted that petitioner is not challenging the conviction, but the sentence may be modified and petitioner may be granted some time to pay the fine. 4. So long as the sentence is not varied or modified against the interest of the second respondent, it is not necessary to issue notice to second respondent. CRRP 3543/2008 3 5. Evidence of second respondent as PW1 which was properly appreciated by the court below establish that Ext.P1 cheque was issued by the petitioner towards repayment of Rs.40,000/- being part of Rs.75,000/- which was borrowed earlier. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that second respondent sent Ext.P4 notice within the period and inspite of receipt of the notice under Ext.P6, petitioner did not pay the same. Therefore conviction of the petitioner for the offence under seciton 138 of Negotiable Instruments Act is perfectly legal. 6. Then the only question is with regard to the sentence. Learned Magistrate awarded a sentence of rigorous imprisonment for three months and a compensation of Rs.40,000/-. Learned Sessions Judge confirmed the same. Considering the nature of the offence, interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a fine of Rs.45,000/- and in default simple imprisonment for two months. On CRRP 3543/2008 4 realisation of the fine, Rs.40,000/- is to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Revision is partly allowed. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of the court and a fine of Rs.45,000/- and in default simple imprisonment for two months. On realisation of the fine, Rs.40,000/- is to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is granted two months time to pay the fine. Petitioner is directed to appear before the Judicial First Class Magistrate, Chavakkad on the expiry of two months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006