IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 3667 of 2008() ------------------------------ CRA.590/2006 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.153/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- SRI.K.R.GOPI, AGED 53 YEARS, S/O.RAGGAVABM G-VILLAH HOUSE, ALA VILLAGE, CHENGANNUR TALAUK. BY ADV. SRI.S.HARIKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAINANT ------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUJATHA.S. CHAKKALAYIL HOUSE, THITTAMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3667 OF 2008 =========================== Dated this the 21st day of November,2008 ORDER Revision petitioner is the accused and second respondent the complainant in C.C.153/2005 on the file of Judicial First Class Magistrate Court-I, Chengannur. Revision petitioner was convicted for the offence under section 138 of Negotiable Instruments Act and sentenced to simple imprisonment for three months and a compensation of Rs.80,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction and sentence before Additional Sessions Court, Mavelikara in Crl.A.590/2006. 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 the revision petitioner was heard. 3. Learned counsel appearing for the revision CRRP 3667/2008 2 petitioner submitted that revision petitioner is not challenging the conviction but the sentence may be modified and petitioner may be granted four months time to pay the amount covered by the dishonoured cheque. 4. So long as the sentence is not varied or modified against the interest of the second respondent, it is not necessary to issue notice to second respondent. 5. Learned Magistrate and learned Additional Sessions Judge appreciated the evidence in the proper perspective. The evidence conclusively establish that revision petitioner borrowed Rs.80,000/- from the second respondent and towards its repayment issued Ext.P1 cheque dated 17.1.2005 and it was dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. In such circumstance, conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. CRRP 3667/2008 3 6. Then the only question is regarding the sentence. Learned Magistrate awarded a substantive sentence to simple imprisonment for three months in addition to a compensation for the amount covered by the dishonoured cheque. Considering the nature of the offence, interest of justice will be met, if the sentence is modified to imprisonment till rising of the court and a fine of Rs.85,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.80,000/- to be paid to second respondent as compensation under section 357 (1)(b)of Code of Criminal Procedure. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. The sentence is modified. Petitioner is sentenced to imprisonment till rising of the court and a fine of Rs.85,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.80,000/- to be paid to second respondent as compensation under section 357 (1)(b) of the Code of Criminal Procedure. Petitioner is granted four months time to pay the CRRP 3667/2008 4 fine. Petitioner is directed to appear before the Judicial First Class Magistrate-I, Chengannur on 24.3.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006