IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.REV.PET.NO. 2342 OF 2009() --------------------------------------------- CRA.12/2008 OF ADDL.SESSIONS COURT, KOTTAYAM ST.191/2007 OF JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------- MARY THANKACHAN, THUNDIPARAMBIL HOUSE, MOOLAVATTOM P.O., NATTAKOM, KOTTAYAM. BY ADV. SRI.V.N.SASIDHARAN SRI.SANTHOSH THOMAS KANDAMCHIRA RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------- 1. P.K.BALACHANDRAN, PUTHENPURAYIL HOUSE, CHALUKUNNU P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2342 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2009 O R D E R -------------- This revision is in challenge of concurrent finding entered by the courts below regarding due execution of a cheque for the discharge of a legally recoverable debt/liability. Petitioner was convicted by learned Judicial First Class Magistrate-II (Mobile), Kottayam in S.T. No.191 of 2007. She was sentenced to undergo simple imprisonment till rising of the court. There was also a direction for payment of compensation of Rs.30,000/- with a default sentence of simple imprisonment for one month. Learned Additional Sessions Judge, Kottayam modified the sentence as fine of Rs.30,000/- with default sentence of simple imprisonment for one month. 2. According to respondent No.1 petitioner borrowed Rs.30,000/- from him and issued Ext.P1, cheque dated 2.3.2005 for repayment of that amount. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. CRL. R.P. No.2342 of 2009 -: 2 :- Petitioner did not reply to the statutory notice. Respondent No.1 gave evidence as P.W1. Petitioner contended that she had borrowed Rs,10,000/- from one Salim and given an unsigned blank cheque as security and that cheque has been misused. Petitioner did not adduce evidence or bring out circumstances to prove or probabilise that case. Respondent No.1 denied that suggestion. There is nothing to disbelieve the evidence of respondent No.1 as P.W1. Petitioner did not reply to the statutory notice served on her. Courts below found in favour of due execution of the cheque. I find no reason to interfere with the conviction of petitioner. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment till rising of the court and she was directed to pay compensation of Rs.30,000/-. Appellate court modified the sentence as fine of Rs.30,000/- with default sentence of one month. It was directed that fine if realised shall be given to respondent No.1 as compensation. 4. Learned counsel for petitioner requested that fine may be converted as compensation payable to respondent No.1 CRL. R.P. No.2342 of 2009 -: 3 :- directly and requested three months' time to deposit the compensation. 5. Section 386 of the Code of Criminal Procedure permits appellate court even in an appeal from conviction and sentence to alter or modify the sentence but not so as to enhance it. In Radhakishnan Nair v. Padmanabhan (2000 (2) KLT 349) learned magistrate sentenced the accused to pay fine exceeding Rs.5,000/-, illegally. In the appeal preferred by the accused learned Sessions Judge modified the sentence as simple imprisonment till rising of the court and compensation payable to the complainant. Legality of that, was challenged in revision in this Court on the premise that modification of sentence effected by the appellate court amounted to enhancement of sentence. That contention was negatived. Revisional court is entitled to exercise such power as the appellate court could exercise. Therefore in exercise of the power of revision this Court can modify the sentence though not to enhance it. Therefore simple imprisonment till rising of the court will not amount to enhancement of sentence. Fine can be converted as CRL. R.P. No.2342 of 2009 -: 4 :- compensation payable to respondent No.1. Considering the circumstances stated by learned counsel, petitioner is granted three months' time to deposit compensation in the trial court. Resultantly, this revision petition is allowed in part to the following extent. (i) Sentence of fine imposed by the appellate court is set aside. (ii) Petitioner is sentenced to undergo simple imprisonment till rising of the court. (iii) Petitioner is directed to deposit in the trial court within three months from this day Rs.30,000/- (Rupees Thirty thousand only) by way of compensation for payment to respondent No.1 under Section 357(3) of the Code of Criminal Procedure. In case of default, petitioner shall undergo simple imprisonment for two months. (iv) It is made clear that it shall be sufficient compliance of condition (iii) if petitioner paid compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial CRL. R.P. No.2342 of 2009 -: 5 :- court through his counsel acknowledging receipt of the compensation within the said period. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO. OF 2000 =================== O R D E R JUNE, 2009