IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Crl.Rev.Pet.No. 4145 of 2008() ------------------------------ CRA.23/2007 of SESSIONS , MANJERI CC.251/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S): APPELLANT IN CRL.A.ACCUSED IN C.C. --------------------------------------------------------------------- BALAKESAVA MENON, S/O.PUTHIYAKUNNATH SREEDEVI AMMA, MATTAKATH HOUSE,CHATHANGOTTUPURAM AMSOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENT & STATE /COMPLAINANT -------------------------------------------------------------- 1. POOKKOTTIL BALAN, S/O.VELU CHALIPPADAM,ERANHIKKODE DESOM, EDAVANNA AMSOM. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4145 OF 2008 =========================== Dated this the 30th day of January,2009 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.251/2005 on the file of Judicial First Class Magistrate-I, Manjeri. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Conviction was challenged before Additional Sessions Court, Manjeri in Crl.A.23/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence to imprisonment till rising of court and a compensation of Rs.1,00,000/- with a default sentence of simple imprisonment for three months. Revision is filed challenging the conviction and sentence. CRRP 4145/2008 2 2. Learned counsel appearing for revision petitioner was heard. 3. In view of the evidence on record and the concurrent findings of fact learned counsel submitted that revision petitioner is not challenging the conviction but revision petitioner may be granted time to pay the amount. It was also submitted that when compensation is awarded under section 357(3) of Code of Criminal Procedure, there cannot be a default sentence and to that extent the sentence is to be modified. 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.1,00,000/- from first respondent and towards its repayment issued Ext.P1 cheque which was dishonoured for encashment. It is also established that first respondent had complied with all statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. CRRP 4145/2008 3 In such circumstance, conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court and compensation which was only for the amount covered by the dishonoured cheque. In such circumstance, I find no reason to interfere with the sentence. But as rightly pointed out by the learned counsel appearing for revision petitioner when compensation is awarded under sub section (3) of Section 357 of Code of Criminal Procedure, there cannot be a default sentence. To that extent the sentence is illegal. Therefore the direction of the learned Sessions Judge for default sentence for the payment of compensation is set aside. Criminal Revision Petition is disposed accordingly. Revision petitioner is granted four months time to pay the amount. He is directed to CRRP 4145/2008 4 appear before the Judicial First Class Magistrate, Manjeri on 1.6.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006