IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 3248 of 2008() ----------------------------------------- CRA.634/2006 OF III ADDL.SESSIONS COURT, ERNAKULAM CC.765/2004 OF ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONERS/APPELLANTS/ACCUSED: -------------------------------------------------------- RAJU M. THOMAS ,S/O THOMAS THOMAS, PROPRIETOR, M/S NANDAVANAM TIMES, CHENGANNUR -21. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. WHIRLPOOL OF INDIA LTD., NEW DELHI HAVING BRANCH OFFICE AT 29/3521, M.G. ROAD, RAVIPURAM, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PORSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.3248/2008 ORDER ON CRL. M.A. NO.9794/2008 IN CRL.R.P. NO.3248/2008 DISMISSED 26/09/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3248 OF 2008 ............................................ DATED THIS THE 26th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act. First respondent filed the complaint, contending that petitioner being the Proprietor of the Proprietory concern, Nandavanam Times, Chengannur, purchased goods from first respondent on credit and towards discharge of the debt, issued Ext.P4 and P5 cheques respectively for Rs.2,00,000/- and Rs.2,84,000/- drawn in his account and maintained in Kallissery branch of Central Bank of India and when the cheque was presented for encashment, through the account maintained by him in M.G.Road branch of City Bank, under Ext.P6 cheque, it was dishonoured for want of sufficient funds and under Ext.P8 notice served on petitioner, the amount covered by the cheques was demanded, but petitioner did not pay the amount and he thereby committed offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Learned Magistrate, on the evidence of PW1 and Exts. P1 to P10, found the petitioner guilty and convicted and sentenced him to simple imprisonment for six months, in addition to a compensation of Rs.5,00,000/- with default sentence for a period of three months. Petitioner challenged the conviction and CRRP 3248/2008 2 sentence before Sessions Court, Ernakulam in Crl.A.634 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction but reduced the sentence to simple imprisonment for two months maintaining the compensation, but settting aside the provision for default clause in view of the decision of the Apex Court. The conviction and sentence is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner fairly submitted that he is not challenging the conviction, but only the substantive sentence and petitioner may be granted time to pay the fine amount. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. 4. On going through the judgments of the courts below, it is clear that finding of courts below that Exts.P4 and P5 cheques were issued by petitioner to first respondent towards discharge of existing liability and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under the Act and petitioner committed the offence under Section 138 of N.I.Act, is perfectly legal and regular. 5. Then the only question is with regard to the sentence. Considering the nature of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court, and a fine CRRP 3248/2008 3 of Rs.5,10,000/- with default sentence of simple imprisonment for two months. Petitioner is also granted two months time to pay the fine amount. On realisation of the fine amount, Rs.5,01,000/- is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 6. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs. 5,10,000/- to be paid within two months from today and in default, simple imprisonment for two months. On realisation of the fine amount, it is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate on 1.12.2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-