IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Crl.Rev.Pet.No. 3450 of 2008() ------------------------------ CRA.118/2007 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.1282/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- JOSE.P.C., S/O.CHACKO, AGED 48 YEARS, PANICHICKAL HOUSE, ERUMPRAKATTAOM, MELUKAVU P.O., KOTTAYAM. BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------------------------------- 1. JOJO JOSEPH, PUNNACKAPALLIL HOUSE, SREEKANDAMANGALAM, ATHIRAMPUZHA, KOTTAYAM. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3450 OF 2008 ------------------------------------------ Dated this the 23rd day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in C.C.1282 of 2004 on the file of Judicial First Class Magistrate-II,Kottayam. Case of the first respondent was that petitioner borrowed Rs.1,00,000/- and towards its repayment issued Ext.P1 cheque dated 23.7.2004 drawn in his account and when the cheque was presented for encashment, it was dishonoured under Ext.P2. In spite of Ext.P4 notice served on the petitioner under Ext.P6 demanding the amount covered under Ext.P1, petitioner did not pay the amount and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. On the evidence of first respondent as PW1, Ext.P1 to P6 and petitioner as DW1 and Ext.D1, learned Magistrate found the petitioner guilty. He was convicted and sentenced to simple imprisonment for five months and a compensation of Rs.1,00,000/- and in default simple imprisonment for five months under section 357(3) of Cr.P.C. Petitioner challenged the conviction and sentence CRRP 3450/08 2 before Sessions Court, Kottayam in Crl.Appeal 118 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the Court and a fine of Rs.1,00,000/- and in default simple imprisonment for three months. It is challenged in the revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel submitted that petitioner may be granted time to pay the fine because of his financial conditions. 4. Learned Magistrate and the learned Sessions Judge appreciated the evidence of PW1 the first respondent in the light of the evidence of petitioner as DW1 and found that Ext.P1 cheque was issued towards repayment of the amount borrowed. I find no reason to interfere with that finding of fact. It is also proved that Ext.P1cheque was dishonoured for want of sufficient funds. That fact was not disputed. There is also no case that first respondent has not complied with the statutory formalities provided under section 138 and 142 of N.I. Act. Conviction of the petitioner for the offence under section 138 is perfectly legal. 5. Then the only question is with regard to sentence. CRRP 3450/08 3 Learned Sessions Judge modified the sentence to imprisonment till rising of the Court and a fine which is only for the amount covered under Ext.P1 cheque. In such circumstances I find no illegality in the sentence warranting interference. Revision is dismissed. On the request of the learned counsel appearing for petitioner, petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before Judicial First Class Magistrate, Kottayam on the expiry of three months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-