IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.Rev.Pet.No. 3573 of 2008() ------------------------------ CRA.425/2008 of ADDL.SESSIONS COURT (ADHOC-II), ERNAKULAM. CC.1342/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------------------- 1. K.C.DAVIS, AGED 38, S/O.CHAKKUNNI, KUTTIKATTU HOUSE, KARIYANNOOR VILLAGE, ERUMAPETTY.P.O, VADAKKANSERY. 2. K.M.A.JOY, AGED 35, S/O.ANTONY, KURUHUNKULANGARA HOUSE, EDAMUTTOM VILLAGE, DO KARA, (UNITY COMPLEX BLDG OPP.TO GOVT.H.S.S. ERUMAPETTY VADAKKANSERY. BY ADV. SRI.RAJESH VIJAYAN SRI.M.GOPAKUMAR SRI.ANIL KUMAR SREEDHARAN RESPONDENT(S): RESPONDENTS ---------------------------------------- 1. T.K.SALEEM, AGED 46,PROPRIETOR, M/S.GREEN LAND CONDIMENTS, ESI HOSPITAL ROAD, PERUMBAVOOR REP.BY HIS POWER HOLDER T.D.SURESH, S/O.T.K.DIVAKARAN, KOMBRAKUDIYIL HOUSE. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3573 & 3574 OF 2008 =========================== Dated this the 11th day of November,2008 ORDER Revision petitioners are the accused and first respondent the complainant before Judicial First Class Magistrate-II, Perumbavoor. Crl.R.P.3573/2008 is filed challenging conviction and sentence in C.C.1342/2005 as confirmed in Crl.A.425/2008 and Crl.R.P.3574/2008 is filed against the conviction and sentence in C.C.1341/2005 as confirmed in Crl.A.426/2008. First respondent lodged the complaint alleging that petitioners committed the offence under section 138 of Negotiable Instruments Act. In C.C.1342/2005 case was that towards the price of various dry fruits and spices purchased by first accused company, represented by petitioners 2 and 3 its Directors, Ext.P2 cheque dated 25.6.2005 for Rs.50,000/- drawn in the account maintained in Erumapetty Branch of South Indian Bank Ltd was issued and when it was presented for encashment, CRRP3573 & 3574/2008 2 under Ext.P3 it was dishonoured for want of sufficient funds and inspite of Ext.P4 notice served on the petitioners under Ext.P5 acknowledgement cards it was not paid and instead Ext.P6 reply was sent and thereby committed the offence under section 138 of Negotiable Instruments Act. In C.C.1341/2005 the case is that towards the price of various dry fruits and spices purchased by first accused represented by petitioners its Directors, Ext.P1 dated 10.7.2005 for Rs.67,306/- drawn in the account maintained in Erumapetty Branch of South Indian Bank was issued and when it was presented for encashment, the cheque was dishonoured for want of sufficient funds under Ext.P2 and inspite of Ext.P3 notice demanding the amount covered by Ext.P1 cheque served on the petitioners under Ext.P4 series of acknowledgement cards, the amount was not paid and instead Ext.P5 reply was sent and petitioners thereby committed the offence under section 138 of N.I. Act. Petitioners pleaded not guilty in both the cases. CRRP3573 & 3574/2008 3 The power of attorney holder of first respondent was examined as PW1 and Exts.P1 to P6 were marked. On the side of the revision petitioners, no evidence was adduced. Learned Magistrate found the petitioners guilty for the offence under section 138 of Negotiable Instruments Act. They were sentenced to simple imprisonment for three months and a compensation of Rs.50,000/- and in default simple imprisonment for three months under section 357(3) of the Code of Criminal Procedure in C.C.1342/2005. In C.C.1341/2005 also petitioners were convicted and sentenced to simple imprisonment for three months and a compensation of Rs.67,306/- and in default simple imprisonment for three months. Petitioners challenged the conviction before Sessions Court, Ernakulam in Crl.A.425/2008 and 426/2008 respectively. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. They are challenged in these revisions. CRRP3573 & 3574/2008 4 2. Learned counsel appearing for the petitioners were heard. 3. Learned counsel appearing for petitioners did not challenge the conviction but sought only modification of the sentence with a prayer for payment of the amount due. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a fine with a direction to pay the fine on realisation, to first respondent. Crl.R.P.3573/2008 is allowed in part. Conviction of the petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed. The sentence is modified. Petitioners are sentenced to imprisonment till rising of the court and a fine of Rs.30,000/- each and in default simple imprisonment for two months. On realisation of the fine Rs.50,000/- to be paid to first CRRP3573 & 3574/2008 5 respondent as compensation under section 357(1) of the Code of Criminal Procedure. Crl.R.P.3574/2008 is allowed in part. Conviction of the petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed. They are sentenced to imprisonment till rising of the court and a fine of Rs.35,000/- each and in default simple imprisonment for two months. On realisation of the fine Rs.68,000/- is to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. In both the cases revision petitioners are granted four months time from today to pay the fine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006