IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 169 of 2009() ----------------------------- CRA.124/2005 of ADDL. SESSIONS COURT (ADHOC-IV), THIRUVANANTHAPURAM. S.T.50/2003 of JUDL.FIRST CLASS MAGISTRATE COURT-I, THIRUVANANTHAPURAM. .................... REVN. PETITIONER(S):APPELLANT/ACCUSED --------------------- M. SELVAMUTHU, MUTHU CONSTRUCTIONS, MARY BHAVANAM, VATTAM, THIRUVITHAMCODE P.O., KANYAKUMARI DISTRICT. BY ADV. SRI.C.K.MOHANAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------- 1. V.L. HEERALAL, TILES MERCHANT, SREEVILASOM TILES, CHAKKAI, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO. 169 OF 2009 -------------------------------------------------- Dated this the 20th day of January, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T.50 of 2003 on the file of Judicial First Class Magistrate-I, Thiruvananthapuram. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl. Appeal 124 of 2005. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to imprisonment till rising of Court and a compensation of Rs.25,000/- and in default simple imprisonment for one month. Revision is filed challenging the conviction and the sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel appearing for revision petitioner submitted that revision petitioner is not challenging the conviction or the liability and he only seeks modification of the substantive sentence and imprisonment till rising of Court in view of his physical condition. CRRP 169/2009 2 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.25,000/- and towards its repayment issued Ext.P1 cheque, which was dishonoured for want of sufficient funds when presented for encashment. It is also proved that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. In such circumstances 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 awarded a substantive sentence of simple imprisonment for three months in addition to compensation of Rs.25,000/- and a further cost of Rs.500/-. Learned Sessions Judge modified the sentence to imprisonment till rising of Court and a compensation of Rs.25,000/- under section 357(3) of Code of Criminal Procedure with a default sentence of simple imprisonment for one month. When a compensation is awarded under section 357(3) of Code of Criminal Procedure, there cannot be a default sentence. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to a fine of Rs.30,000/-. Revision is allowed in part. Conviction of the revision petitioner CRRP 169/2009 3 for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to a fine of Rs.30,000/- and in default simple imprisonment for one month. On realisation to fine, Rs.25,000/- to be paid to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision petitioner is granted one month's time to pay the fine. Revision petitioner is directed to appear before Judicial First Class Magistrate-I, Thiruvananthapuram on 20.2.2009. M. SASIDHARAN NAMBIAR, JUDGE okb