IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 333 of 2009() ----------------------------- CRA.218/2005 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.515/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- GOPALAKRISHNAN NAIR, S/O.JANARDHANAN PILLAI,JYOTHIS, KUZHIYILMUKKU,ATTINGAL BY ADV. SRI.LIJU. M.P RESPONDENT(S)/complainant & state: --------------- 1. MURALIDHARAN, S/O.APPUKUTTAN,DEEPU NIVAS KODUMON,ATTINGAL 2. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.333 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in C.C.515/2003 on the file of Judicial First Class Magistrate-I, Attingal. Revision petitioner was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.1,10,000/- for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before Additional Sessions court, Thiruvananthapuram in Crl.A.218/2005. 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 submitted that in view of the evidence on record and concurrent findings of fact revision petitioner is not challenging the conviction CRRP 333/09 2 but sentence may be modified. Learned counsel also submitted that revision petitioner was arrested and is undergoing sentence from 15/1/2009. 4. On hearing the learned counsel and 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 statutory formalities provided under Sections 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. So long as the sentence is not altered or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. As per the sentence awarded by the learned Magistrate as confirmed by the learned Additional Sessions Judge, first respondent is to get compensation of Rs.1,10,000/-. Considering entire facts and CRRP 333/09 3 circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment for 14 days and fine of Rs.1,10,000/- 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)(b) of Code of Criminal Procedure. Revision is allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment for 14 days and fine of Rs.1,10,000/- 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)(b) of Code of Criminal Procedure. Petitioner is granted four months time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE. uj.