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. 3454 of 2008() ------------------------------ CRA.584/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.206/2006 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- M.D.ASHOKAN, AGED 51 YEARS, S/O.DAMODARAN, MULLAKKARAVELI, PANAVALLI, THRICHATTUKULAM P.O., CHERTHALA. BY ADV. SRI.S.SHANAVAS KHAN SMT.S. INDU RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. MANUAL.S.THEADORE, MARY COTTAGE, P.H.WARD, ALAPPUZHA. 2. THE 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. 3454 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. 206 of 2006 on the file of Chief Judicial Magistrate, Alappuzha. First respondent lodged the complaint alleging that petitioner issued Ext.P1 cheque drawn in his account for repayment of the amount due on 9.7.2005 for Rs.6,00,000/- and it was dishonoured under Ext.P2 for want of sufficient funds and inspite of Ext.P4 notice petitioner did not pay the amount and Ext.P4 notice was returned back 'not claimed' inspite of serving intimation and petitioner committed the offence under section 138 of Negotiable instruments Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. Petitioner was examined as DW1. Learned Magistrate on the evidence found him guilty. He was sentenced to simple imprisonment for three months and a fine of Rs.6,00,000/- and in default simple imprisonment for one month. On realisation of fine it was directed to be paid to first respondent as compensation under section 357(1) of Code of CRRP 3454/08 2 Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.Appeal 584 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. The learned counsel submitted that petitioner may be granted time to pay the fine as it is Rs.6,00,000/-. It was also submitted that considering the nature of the offence, the sentence awarded is excessive. 4. On going through the judgments of the learned Magistrate and learned Sessions Judge, it is clear that evidence was properly appreciated. When questioned under section 313 of Cr.P.C. and cross-examining PW1, there was no case that petitioner had given three cheques including Ext.P1 to Sreekumar as claimed at the time when he was examined as DW1. On the evidence it is clear that Ext.P1 cheque was issued to first respondent towards repayment of Rs.6,00,000/-, which was due, at that time. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that first respondent has complied with all the statutory CRRP 3454/08 3 formalities provided under section 138 and 142 of N.I.Act. Though intimation of the registered notice was given to the petitioner, he did not receive the notice. Therefore Courts below were justified in convicting the petitioner for the offence under section 138 of N.I.Act. 5. Then the question is the sentence. So long as sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Revision is partly allowed. Considering the nature of the offence, interest of justice will be met if the sentence is modified to imprisonment till rising of the Court and a fine of Rs.6,10,000/- and in default simple imprisonment for three months. On realisation of fine Rs.6,00,000/- is to be paid to first respondent as compensation under section 357 (1) of Cr.P.C. Petitioner is granted four months time from today to pay the fine. Petitioner is directed to appear before Chief Judicial Magistrate, Alappuzha on the expiry of four months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-