IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3367 of 2008() ----------------------------------------- CRA.374/2006 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.967/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... PETITIONER: APPELLANT/ACCUSED. ----------------------- THAMPI ABRAHAM, KAITHAVANA TRAVELS, KAITHAVANA VEEDU, OPP.ST.THOMAS MARTHOMA CHRUCH ROAD,KOZHENCHERRY. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENTS: RESPONDENTS/RESPONDENTS/COMPLAINANTS. -------------------------- 1. PHILIP P THOMAS, PUTHEN VEETTIL CHURCH VIEW,ELANTHOOR P.O., ELANTHOOR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. GOVERNMENT PLEADER SRI.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3367 OF 2008 =========================== Dated this the 15th day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of first respondent is that towards repayment of Rs.3 lakhs borrowed by the petitioner, he issued Ext.P1 cheque drawn in his account maintained in Kozhencherry Branch of Indian Bank dated 8.4.2005 and when it was presented for encashment through State Bank of Travancore, Kozhencherry, under Ext.P2 it was dishonoured and under Ext.P3, the dishonour was intimated to first respodnent. He sent Ext.P4 notice demanding the amount covered by Ext.P1. It was received by the petitioner under Ext.P6 acknowledgement card. He failed to pay the amount and thereby committed the offence. Petitioner pleaded not guilty. Complainant was examined as PW1. Exts.P1 to P6 CRRP 3367/2008 2 were marked. Petitioner was examined as DW1. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months in addition to a compensation of Rs.3,00,000/- with a default sentence of simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.374/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months and a fine of Rs.3,00,000/- with a default sentence of simple imprisonment for three months directing payment of the fine as compensation. Conviction and sentence are challenged in this petition. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner did not challenge the conviction but only the sentence. It was argued that the sentence awarded CRRP 3367/2008 3 is excessive and a lenient view may be taken and petitioner may be granted four months time to pay the fine amount. 4. The evidence of PW1 establishes that Ext.P1 cheque was issued towards repayment of the amount borrowed earlier. Though DW1 was examined, learned Magistrate and learned Sessions Judge on appreciating the evidence found that his evidence cannot be believed and evidence of PW1 prove that Ext.P1 cheque was issued towards the discharge of an existing liability. Nothing was pointed out to interfere with that finding. Evidence also establish that when cheque was presented it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. In such circumstances, conviction of the petitioner for the offence under section 138 of N.I.Act is perfectly legal and correct. Then the only question is with regard to the sentence. So long as the sentence is not to be modified or varied against the interest of first CRRP 3367/2008 4 respondent, no notice need be issued to first respondent. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is reduced to imprisonment till rising of the court and a fine of Rs.3,00,000/-and in default simple imprisonment for three months. On realisation of the fine amount, it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is granted four months time to pay the fine amount. Learned counsel appearing for petitioner submitted that he be permitted to produce receipt after paying the fine amount directly to first respondent. Petitioner is permitted to pay the fine amount to first respondent and produce the receipt . It is made clear that it is for the petitioner to establish that the receipt so produced is the one issued by first respondent. Petitioner is directed to appear before Judicial First Class Magistrate Court-I, Pathanamthitta on the expiry of four CRRP 3367/2008 5 months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006