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. 3452 of 2008() ------------------------------ CRA.688/2007 of ADDL.DISTRICT&SESSIONS COURT(ADHOC-II),KOZHIKODE CC.670/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.M.DEVADASAN, S/O.MOOTHORAN, AGED 42 YEARS, 'NANDANAM', KIZHAKKEKURUNGOT, NIRMALLUR, PANANGAD P.O., KOYILANDY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. RAJAN, S/O.KANARAKUTTY, AGED 37 YEARS, PANIYAMVALLI HOUSE, PANANGAD P.O. PANANGAD AMSOM DESOM, BALUSSERY, KOYILANDY TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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. 3452 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.670 of 2006 on the file of Judicial First Class Magistrate-II, Perambra. First respondent lodged the complaint contending that petitioner borrowed Rs.1,40,000/- during first week of May 2006 and when the amount was demanded he issued Ext.P1 cheque dated 13.9.2006 drawn in his account maintained in Kozhikode branch of ICICI Bank. When Ext.P1 cheque was presented for encashment, it was dishonoured under Ext.P2. Ext.P3 notice was sent to the petitioner demanding the amount covered under Ext.P1. It was refused to be received by petitioner and returned as Ext.P5. Petitioner did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments act. Learned Magistrate took cognizance of offence. Petitioner pleaded not guilty. On the evidence of first respondent as PW1 and postman as PW2 and Exts.P1 to P5 and Exts.X1 and X2, learned Magistrate found the petitioner guilty. He was convicted and sentenced to simple CRRP 3452/08 2 imprisonment for six months and a compensation of Rs.1,40,000/- under section 138 of N.I. Act. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.Appeal 688 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel did not challenge the conviction and sought only modification of sentence and time for payment of compensation. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. Evidence of PW1 establish that petitioner borrowed Rs.1,40,000/- and issued Ext.P1 cheque towards its repayment. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. Though Ext.P3 notice was not received by petitioner, evidence of PW2, the postman, establish that the notice was tendered and petitioner did not receive the same. The evidence also establish that first respondent has complied with all the statutory formalities provided under section 138 and 142 of N.I.Act. Conviction of the petitioner for the offence under section 138 of CRRP 3452/08 3 N.I.Act is perfectly legal. 5. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.1,40,000/-. Learned Magistrate sentenced petitioner to simple imprisonment for six months in addition to a compensation for the amount covered by the dishonoured cheque. Learned Sessions Judge confirmed the same. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. Revision is allowed in part. Conviction is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.1,45,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.1,40,000/- to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is granted four months time from today to pay the fine. Petitioner is directed to appear before Judicial First Class Magistrate-II, Perambra on the expiry of four months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-