IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3914 OF 2008() ------------------------------ CRA.809/2007 of ADDL. DISTRICT & SESSIONS COURT(ADHOC-II), KOZHIKODE ST.2066/2006 of SPL. JUDL. FIRST CLASS MAGISTRATE COURT,(MARAD CASES), KOZHIKODE. .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MUHAMMAD HASHIM, AGED 34, S/O.MATTUMMAL ABOOBACKER KOYA HAJI, MATTUMMAL, PUTHIYARA PO., KOZHIKODE DISTRICT. BY ADV. SMT.M.LISHA RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ------------------- 1. M.H.SUBRAMANIAM, “MARATHAKAM” 5/2980, THIRUTHIYAD, PUTHIYARA PO., KOZHIKODE DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3914 OF 2008 ------------------------------------------ Dated this the 2nd day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 2066 of 2006 on the file of Special Judicial First Class Magistrate (Marad Cases), Kozhikode. Petitioner was convicted for the offence under section 138 of Negotiable Instruments Act and sentenced to simple imprisonment for three months and compensation of Rs.2,60,000/- and in default simple imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl. Appeal 809 of 2007. Learned Additional 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 revision petitioner was heard. 3. Learned counsel submitted that revision petitioner is not challenging the conviction, but sentence may be modified and he may be granted six months time to pay the amount CRRP3914/08 2 covered by the dishonoured cheque. 4. 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. 5. On hearing the learned counsel and on going through the judgments of the Courts below, I find no reason to interfere with the conviction. Evidence establish that petitioner borrowed Rs.4,00,000/- from the revision petitioner and towards its repayment issued two cheques and when the cheques were dishonoured and C.C.143 of 2001 was lodged, there was a settlement of that case and revision petitioner agreed to pay Rs.2,60,000/- and issued Ext.P1 cheque. It is also proved that Ext.P1 was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all the statutory formalities provided under section 138 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly in order and warrants no interference. 6. Learned Magistrate awarded a sentence of simple imprisonment for three months and a compensation of Rs.2,60,000/-. Learned Sessions Judge confirmed the same CRRP3914/08 3 sentence. Considering the entire facts and circumstances interest of justice will be met if the sentence is modified to imprisonment till rising of Court and fine of Rs.2,60,000/- and in default simple imprisonment for three months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.2,60,000/- and in default simple imprisonment for three months. On realisation it is to be paid to first respondent. Petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before the Magistrate on 4.2.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-