IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 3435 of 2008() ------------------------------ CRA.167/2007 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.451/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED ---------------------------------------------- A.B.VINOD, S/O.BALAKRISHNAN, MANTHOTTATHIL HOUSE, KIDANGOOR SOUTH PO., KOTTAYAM DISTRICT. BY ADV. SRI.JACOB E SIMON SRI.K.M.FIROZ SRI.M.RIJESH SRI.MICHAEL POOVATHANY RESPONDENT(S): RESPONDENTS/COMPLAINANTS/STATE --------------------------------------------------------------- 1. BAIJU VARGHESE, S/O.T.V.VARGHESE THANDAMURIYIL HOUSE LAKKATTOOR KARA, AYARKUNNAM, KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/10/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3435 OF 2008 =========================== Dated this the 22nd day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in S.T.451/2006 on the file of Judicial First Class Magistrate, Kottayam. First respondent lodged the complaint contending that towards repayment of the amount of Rs.85,000/- borrowed by the petitioner, he issued Ext.P1 cheque drawn in his account and it was dishonoured when presented for encashment under Ext.P2 and Ext.P4 notice was sent demanding the amount covered by Ext.P1 which was received by the petitioner under Ext.P6 and he failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P7 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty. He was CRRP 3435/2008 2 sentenced to undergo simple imprisonment for three months and a compensation of Rs.85,000/- and in default simple imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a fine of Rs.85,000/- and in default simple imprisonment for three months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel did not challenge the conviction but only submitted that petitioner need some time to pay the amount. 4. The evidence of PW1 which was accepted by the courts below establish that Ext.P1 was issued by the petitioner towards repayment of the amount due. Evidence also establish that when presented Ext.P1 was dishonoured for want of sufficient funds CRRP 3435/2008 3 and first respondent has complied with all the statutory formalities provided under sections 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court and a fine which is the amount covered by the dishonoured cheque. In such circumstance, I do not find any reason to interfere with the sentence also. Criminal Revision Petition is dismissed. On the submission of the learned counsel petitioner is permitted to pay the fine which is to be paid to first respondent as compensation under section 357 (1) of Code of Criminal Procedure on realisation, directly to first respondent and produce the receipt before the learned Magistrate. Petitioner is granted three months time from today to pay the fine and to appear. Petitioner is directed to CRRP 3435/2008 4 appear before Judicial First Class Magistrate, Kottayam on the expiry of three months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006