IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3494 of 2008() ------------------------------ CRA.173/2005 of ADDL. SESSIONS COURT (ADHOC-I), THIRUVANANTHAPURAM CC.563/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- R.RAJARAM, S/O.RAMACHANDRAN, V.S.S.C., CMS/REPLACE, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. K.V.ABDUL NAZAR, PROPRIETOR, AKBAR TRAVELS OF INDIA, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, PRAVEEN, S/O.PURUSHOTHAMAN, PULLERI HOUSE, PATTAMBI, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3494 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in C.C. 563 of 2003 on the file of Judicial First Class Magistrate-V, Thiruvananthapuram. Case of the first respondent was that petitioner purchased air tickets for Rs.11,399/- and issued Ext.P2 cheque drawn in his account maintained in Pattom branch of State Bank of India and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P3. Ext.P4 notice was sent demanding the amount covered by the dishonoured cheque. Petitioner did not pay the amount and instead sent Ext.P7 reply notice disputing the liability and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P7 were marked. Petitioner was not examined and a witness was examined as DW1. Ext.D1 was marked. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three CRRP 3494/08 2 months and a compensation of Rs.15,000/- and in default simple imprisonment for one month. Petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl. Appeal 173 of 2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel did not challenge the conviction but only sought modification of the sentence. Learned counsel argued that considering the nature of the offence and the amount covered by the dishonoured cheque, the sentence awarded is excessive and it may be modified and petitioner may be granted three months time to pay the fine. 4. So long as the sentence is not varied or modified as against the interest of first respondent, it is not necessary to issue notice to him. Evidence of PW1 with evidence of DW1 establish that Ext.P1 cheque was issued towards the repayment of the amount due to first respondent on account of purchase of air tickets. Evidence also establish that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and CRRP 3494/08 3 142 of N.I. Act. I do not find any reason to interfere with the appreciation of evidence or the factual findings of the Courts below. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is with regard to the sentence. Ext.P1 is only for Rs.11,399/-. Interest of justice will be met if the sentence is modified to imprisonment till rising of Court and a fine of Rs.15,000/- and in default simple imprisonment for two months. Revision is therefore allowed in part. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. Sentence is modified to imprisonment till rising of Court and a fine of Rs.15,000/- 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. Petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on the expiry of three months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-