IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3696 OF 2008() ------------------------------ CRA.565/2005 of II ADDL. SESSIONS COURT, PALAKKAD CC.432/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ------------------------------------------------- P.V.MAMMU HAJI, S/O.ABDU, MUBARAK HOUSE, KOROTH ROAD, P.O. AZHIUR, CALICUT DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------- 1. P.C.MOHAMMED ALI, S/O.POCKER, MISSION COMPOUND, ROBHINSON ROAD, PALGHAT. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3696 OF 2008 ------------------------------------------ Dated this the 11th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C. 432 of 2001 on the file of Judicial First Class Magistrate-III, Palakkad. Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Conviction was confirmed by Additional Sessions Judge, Palakkad in Crl. Appeal 565 of 2005. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. In view of the evidence on record and the concurrent findings of facts, learned counsel appearing for revision petitioner did not challenge the conviction and only sought modification of sentence and time for payment of the compensation. 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.2,00,000/- in CRRP 3696/2008 2 February 2000 and towards its repayment issued Ext.P1 cheque for Rs.2,38,000/- including the interest till then. Evidence also establish that the cheque was dishonoured for want of sufficient funds and in spite of notice sent within the statutory period, revision petitioner did not pay the amount. 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 Magistrate sentenced the petitioner to simple imprisonment for three months and a compensation of Rs.2,38,000/- and in default simple imprisonment for two months. It was confirmed by the learned Sessions Judge. 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 Court and a fine of Rs.2,38,000/- and in default simple imprisonment for two months. On realisation of fine, it shall be paid to first respondent as compensation under section 357(1) of Cr.P.C. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is CRRP 3696/2008 3 confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.2,38,000/- and in default simple imprisonment for two months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Revision petitioner is granted four months time from today to pay the fine. Revision Petitioner is directed to appear before the Magistrate on 16.4.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-