IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 3409 of 2008() ------------------------------ CRA.423/2007 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.1806/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- BENNY PETER, ST. MARY'S ENTERPRISES, KAMABALAKADAU, WAYANAD. BY ADV. SRI.J.DEVADANAM SRI.PRAMOD J.DEV RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------------------- 1. SUKUMARAN NAIR R.V., 16/769 A1 AMINA BUILDING, NEAR SANGAM THEATRE, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3409 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R Petitioner is the accused in ST 1806 of 2004 on the file of Judicial First Class Magistrate-I, Kozhikode. First respondent is the complainant. First respondent lodged the complaint alleging that petitioner borrowed Rs.1,00,000/- from him on 24.7.2003 and towards its repayment, issued Ext.P1 cheque dated 24.4.2004 drawn in his account maintained in Kambalakad Branch of Wayanad District Co-operative Bank and when the cheque was presented, through the account maintained by first respondent in UTI Bank of YMCA Cross-Road, Calicut, it was dishonoured under Ext.P2 for insufficient funds and Ext.P5(a) notice was sent demanding the amount covered by the dishonoured cheque which was received by petitioner under Ext.P5(c) postal acknowledgement, but he did not pay the amount and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of first respondent as PW1 and Exts.P1 to P5 found the petitioner guilty. He was convicted CRRP 3409/08 2 and sentenced to a fine of Rs.1,10,000/- and in default simple imprisonment for three months. On realisation of the fine, it was directed to be paid to first respondent as compensation. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl. Appeal 423 of 2007. 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 petitioner was heard. 3. Learned counsel did not challenge the conviction or the sentence and only sought three months time to pay the fine. 4. On going through the judgments of the Courts below , I do not find any illegality or irregularity in the conviction. Evidence establish that petitioner borrowed Rs.1,00,000/- and towards its repayment issued exxt.P1 cheque. It is also proved that when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal and CRRP 3409/08 3 correct. 5. Then the only question is with regard to sentence. Courts below sentenced the petitioner only to a fine and that too only Rs.10,000/- in excess of the amount covered by the dishonoured cheque with a default sentence of simple imprisonment for three months. In such circumstances, there is no illegality or irregularity in the sentence also. Revision is dismissed. On the request of the learned counsel for petitioner, petitioner is granted three months time to pay the fine from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-