IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 Crl.Rev.Pet.No. 154 of 2009() ----------------------------- CRA.750/2007 of 750/07 OF ADDL.DISTRICT COURT, KOZHIKODE ST.129/2005 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M.K.GEETHA, NURSING ASSISTANT, GRADE-I, KOTTAPARAMBA HOSPITAL, KOZHIKODE BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. C.K.RAVEENDRAN, S/O.KUNHIKRISHNAN NAIR, CHEMMAMCHERRY, NEAR GRAMA PANCHAYATH, P.O.ULLIYERI. 2. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.154 OF 2009 ------------------------------------------ Dated 16th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in S.T.129/2005 on the file of Judicial First Class Magistrate-II, Kozhikode. Revision petitioner was convicted and sentenced to imprisonment till rising of court and compensation of Rs.1,00,000/- an in default simple imprisonment for three months for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before the Sessions court, Kozhikode in Crl.A.750/2007. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel appearing for revision petitioner argued that courts below should not have CRRP 154/09 2 accepted the evidence of PW1 and rejected the case of revision petitioner as DW1. But when the argument was found not acceptable learned counsel submitted that in view of the evidence on record and concurrent findings of fact, revision petitioner is not challenging the conviction but sufficient time may be granted to pay the compensation. Learned counsel also submitted that default sentence for compensation awarded under Section 357(3) of Criminal Procedure Code is not legal and to that extent the sentence is not sustainable. 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.1,00,000/- from first respondent and issued Ext.P1 cheque towards its repayment which was dishonoured for want of sufficient funds when presented for encashment. It is also established that first respondent had complied with all the statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. CRRP 154/09 3 5. Then the question is regarding the sentence. Learned Magistrate awarded a sentence of imprisonment till rising of court in addition to compensation of Rs.1,0,000/- to be paid to first respondent under Section 357(3) of Criminal Procedure Code. I find no reason to interfere with that sentence or direction to pay compensation. But there is force in the submission that when compensation is awarded under Section 357(3) of the Code there cannot be a default sentence. Therefore, direction for default sentence is bad. Revision is allowed in part. Conviction for the offence under Section 138 of Negotiable Instruments Act and sentence and compensation are confirmed. The default sentence for compensation under Section 357(3) of Code of Criminal Procedure is deleted. Revision petitioner is granted six months time to pay the fine. Revision petitioner is directed to appear before the Judicial First Class Magistrate-I, Kozhikode on 15/7/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRRP 154/09 4