IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3602 of 2008() ------------------------------------------- CRA.478/2004 of III ADDL.SESSIONS COURT, ERNAKULAM CC.783/2001 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED ------------------------------- P.I.SAFIYA BEEI, W/O. .K.PAREED, ELLAPPILLY HOUSE, KANJIRAKKADU KARA, PERUMBAOOR. BY ADV. SRI.M.M.ALIAS RESPONDENT(S): RESPONDENTS/ COMPLAINANT & STATE ------------------------- 1. SRI GEORGE P.CHERUKOTH, S/O. PAULOSE, CHERUKOTH HOUSE, LAYAM ROAD, ERNAKULAM, KOCHI 11. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, DISTRICT & SESSIONS COURT, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3602 OF 2008 ............................................ DATED THIS THE 28th DAY OF NOVEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.783 of 2001 on the file of Judicial First Class Magistrate-I, Kochi. Petitioner was convicted for the offence under Section 138 of N.I.Act. Petitioner challenged the conviction before Sessions Court, Ernakulam in Crl.A.478 of 2004. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel submitted that revision petitioner is not challenging the conviction but only modification of sentence and six months time to pay the amount covered by the dishonoured cheque. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 3. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Ext.P1 cheque was issued by revision petitioner towards repayment of the amount of Rs.2,25,000/- borrowed by revision petitioner. Though revision petitioner raised a contention that Ext.P1 cheque was not issued CRRP 3602/2008 2 towards discharge of any legally recoverable debt, and her son had obtained a loan which was subsequently repaid with double the interest, no evidence was adduced even to probabilise the case of revision petitioner that Ext.P1 cheque was issued as a security for the loan obtained by her son. Courts below appreciated the evidence in the proper perspective and relying on the evidence of PW1 found that Ext.P1 cheque was issued towards discharge of the debt on account of a loan obtained from first respondent earlier. That finding is perfectly in accordance with the evidence. Evidence also establish that the cheque was dishonoured for want of sufficient funds and in spite of notice, revision petitioner did not pay the amount. Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is regarding the sentence. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and a fine of Rs.2,25,000/- and in default, simple imprisonment for one month. On realisation of fine, it is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 5. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till CRRP 3602/2008 3 rising of court and a fine of Rs.2,25,000/- and in default, simple imprisonment for one month. On realisation of fine, it is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted six months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 30.5.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-