IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA, 1930 Crl.Rev.Pet.No. 3973 of 2008() ------------------------------ CRA.119/2007 of ADDL. SESSIONS COURT, (ADHOC) I, PALAKKAD ST.1980/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- BALAKRISHNAN, S/O.RAMAKRISHNAN, 'GEETHALAYAM', KOLAYAKKAD, PUDUSSERY, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE; ------------------------------------------------------------------------------------------- 1. GOPINATHAN, S/O.SETHUMADHAVAN, PARUTHIKKAD, EDAYAR STREET, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3973 OF 2008 ------------------------------------------ Dated 12th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in S.T.1980/2005 on the file of Judicial First Class Magistrate-II, Palakkad. Revision petitioner was convicted for the offence under Section 138 of Negotiable Instruments Act. He challenged the conviction and sentence before the Sessions court, Palakkad in Crl.A.119/2007. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and confirmed the direction to pay compensation. Revision is filed challenging the conviction and the sentence. 2. Learned counsel appearing for revision petitioner submitted that in view of the evidence on record and concurrent findings of fact, revision petitioner is not challenging the conviction. Learned counsel relying on the medical certificate produced submitted that revision petitioner is not in a position to attend the court to undergo imprisonment till rising of court and therefore CRRP 3973/08 2 sentence may be modified. Learned counsel also submitted that when compensation is granted under Section 357(3) of Criminal Procedure Code there cannot be a default sentence. 3. On going through the judgments of the courts below I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.50,000/- from first respondent and Rs.40,000/- was repaid and towards balance inclusive of interest issued Ext.P1 cheque for Rs.11,800/- which was the balance amount and its interest and the cheque when presented was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 4. Learned Additional Sessions Judge modified sentence to imprisonment till rising of court and confirmed compensation including default sentence. There is force in the submission of the learned counsel appearing for revision petitioner that when compensation under Section 357(3) of Criminal Procedure Code is CRRP 3973/08 3 granted, default sentence cannot be part of the sentence and there cannot be a default sentence for the compensation payable under Section 357(3) of Criminal Procedure Code. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to fine with a direction to pay compensation out of the fine realised. So long as the sentence is not varied or modified against the interest of first respondent it is not necessary to issue notice to first respondent. As per the sentence confirmed by Additional Sessions Judge, first respondent is entitled to get compensation of Rs.11,800/-. Revision petition 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 fine of Rs.13,000/- and in default simple imprisonment for one month. On realisation of fine, Rs.12,000/- to be paid to first respondent as compensation under Section 357(1)(b) of Criminal Procedure Code. Revision petitioner is granted one months' time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE. uj.