IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 104 of 2009() ----------------------------- CRA.328/2007 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.173/2005 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER/appellant/accused: --------------------- VIJAYAMMA, VIJAYABHAVAN KOTTA PO., KIDAGANOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.AJITH MURALI RESPONDENT(S)/respondents/complainant: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. D.ANILKUMAR, 37 YEARS, S/O.P.R.DAMODHARAN PILLAI, SREERAMA SADANAM, KURIANNOOR, THOTTAPUZHASSERY VILLAGE, THIRUVALLA TALUK, REP. BY ITS P/AT.HOLDER K.G.RAJASEKHARAN NAIR, 54 YEARS, S/O.GOPALAN NAIR, KANNANKARA HOUSE, PULLAD PO., KOIPURAM VILLAGE,THIRUVALLA. R1 BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO. 104 OF 2009 ------------------------------------------ Dated 9th January 2009 O R D E R Revision petitioner is the accused and second respondent, the complainant in S.T.173/2005 on the file of Chief Judicial Magistrate, Pathanamthitta. Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. He challenged the conviction before Sessions court, Pathanamthitta in Crl.A.328/07. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel in view of the concurrent findings of fact and evidence on record submitted that revision petitioner is not challenging the conviction but sentence may be modified and time may be granted to pay the amount covered by the dishonoured cheque. CRRP 104/09 2 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that towards repayment of Rs.2,75,000/- revision petitioner issued Ext.P1 cheque which was dishonoured for want of sufficient funds when presented for encashment. It is also proved that second respondent had complied with all the statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is with regard to the sentence. So long as the sentence is not varied or altered against the interest of second respondent, it is not necessary to issue notice to second respondent. Learned Magistrate awarded a sentence of simple imprisonment for six months and fine of Rs.3,00,000/- with a direction to pay Rs.2,90,000/- to second respondent as compensation, out of the fine realised. Learned Sessions Judge confirmed the sentence. Ext.P1 cheque was issued on 7/12/2002. Considering the facts and circumstances of the case, interest of justice will be met, if the sentence is modified with sufficient CRRP 104/09 3 compensation to second respondent. 6. Revision is allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.3,00,000/- and in default simple imprisonment for two months. On realisation of fine Rs.2,90,000/- to be paid to second respondent as compensation under Section 357 (1)(b) of Criminal Procedure Code. Revision petitioner is granted five months' time to pay fine. Revision petitioner is directed to appear before Chief Judicial Magistrate, Pathanamthitta on 10/6/09. M.SASIDHARAN NAMBIAR, JUDGE. uj.