IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.Rev.Pet.No. 4019 of 2008() ------------------------------ CRA.392/2005 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM ST.264/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- R.REMANAN, S/O.RAGHUNATHAN, LISSY BHAVAN, PANDAKASALA, CHIRAYINKIL. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. DROJI, S/O.RAVEENDRA NATH, VAMKIL VEEDU, SAVAGERY, VARKALA PIN - 695 141. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 4019 OF 2009 ............................................ DATED THIS THE 13th DAY OF JANUARY, 2009 ORDER Revision petitioner is the accused and first respondent, the complainant in S.T.2646 of 2003 on the file of Judicial First Class Magistrate, Varkala. Revision petitioner was convicted and sentenced for the offence under Section 138 of N.I.Act. He challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.A.392 of 2005. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel though submitted that there is discrepancy in the complaint as what was pleaded in the complaint was that the cheque was issued for Rs.1,00,000/- and not for Rs.2,00,000/-, in view of the concurrent findings of the courts below and the evidence on record, submitted that revision petitioner is not challenging the conviction and is only seeking modification of the sentence and six months time to pay the amount covered by the dishonoured cheque. 3. Though learned counsel submitted that there is discrepancy in the complaint and evidence, a reading of the complaint shows that it was specifically pleaded in the complaint that revision petitioner CRRP 4019/2008 2 borrowed Rs.2,00,000/- and towards its repayment, issued two separate cheques each for Rs.1,00,000/-. What was pleaded is that each cheque was for Rs.1,00,000/- and not that the cheques together were issued for Rs.1,00,000/-. On going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.2,00,000/- from first respondent and towards its repayment, issued Ext.P1 and P2 cheques respectively for Rs.1,00,000/- each and the cheques were dishonoured, when presented for encashment, for want of sufficient funds and first respondent had complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the question is with regard to the sentence. Learned Magistrate awarded a sentence of simple imprisonment for four months, in addition to compensation for the amount covered by the dishonoured cheque with a default sentence. As rightly pointed out by the learned counsel, when compensation is awarded under Section 357(3) of Code of Criminal Procedure, there cannot be a default sentence. Therefore to that extent, sentence is illegal and is to be modified. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to CRRP 4019/2008 3 first respondent. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court, in addition to a fine of Rs.2,00,000/- and in default, simple imprisonment for two months with a direction to pay the fine on realisation to first respondent as compensation. 5. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and a fine of Rs.2,00,000/- and in default, simple imprisonment for two months. On realisation of fine, it is to be paid to first respondent as compensation under Section 357 (1)(b)of Code of Criminal Procedure. Revision petitioner is granted six months, time from today, to pay the fine. He is directed to appear before Judicial First Class Magistrate, Varkala on 13.7.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk