IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Crl.Rev.Pet.No. 368 of 2004() ----------------------------- CRA.325/2003 of ADDL.SESSIONS COURT (SPL.C0URT), KOTTAYAM CC.429/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- N.R.RAJESH, NELLIMALA HOUSE, CHELIKUZHY, MUNDAKKAYAM, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE -------------------------------------------------------------------- 1. SUJITH JOSEPH, S/O. JOSEPH, KEPALLIL VADAKKETHIL HOUSE, NEAR ST.THOMAS ORTHODOX CHURCH, PAINGANA, MUNDAKKAYAM, KOTTAYAM 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 368 OF 2004 =========================== Dated this the 6th day of August,2010 ORDER Revision petitioner the accused in C.C.429/2001 on the file of Judicial First Class Magistrate's Court, Kanjirappally filed this revision challenging the conviction and sentence for the offence under section 138 of Negotiable Instruments Act. First respondent lodged the complaint alleging that petitioner borrowed Rs.25,000/- and towards its repayment issued Ext.P1 cheque drawn in the account maintained by him and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2 and it was intimated to the first respondent under Ext.P3 by his bank. First respondent demanded the amount covered by the dishonoured cheque under Ext.P4 notice. It was received by the Crl.R.P.368/2004 2 petitioner under Ext.P6 postal acknowledgement card. Petitioner failed to pay the amount and thereby committed the offence. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent was examined as PW1. Two witnesses were also examined and Exts.P1 to P7 were also marked. On the side of the petitioner, he was examined as DW1. A witness was examined as DW2 and Exts.D1 to D4 were marked. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months. Petitioner challenged the conviction and sentence before the Sessions Court, Kottayam in Crl.A.325/2003. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence to simple imprisonment for one month and a compensation of Rs.25,000/- and in default simple imprisonment for one month. Revision is filed challenging the conviction. 2. Learned counsel appearing for the Crl.R.P.368/2004 3 petitioner was heard. 3. Learned counsel submitted that petitioner has already paid the amount due under the cheque subsequent to the revision but he is not in a position to file a petition to compound the offence as the first respondent is now not in India and in such circumstances the sentence be modified. 4. On going through the evidence, I find no reason to interfere with the conviction. Evidence establish that Ext.P1 cheque was issued by the petitioner towards the repayment of Rs.25,000/- borrowed from the first respondent. It was dishonoured for want of sufficient funds. First respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. 5. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.25,000/-. It was issued on 24.4.2001. Learned Additional Sessions Judge modified the sentence to simple imprisonment for one month in addition to a Crl.R.P.368/2004 4 compensation of Rs.25,000/-. Considering the facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a compensation of Rs.28,000/- and in default simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.28,000/- to be paid to the first respondent and in default simple imprisonment for one month. If petitioner has deposited any amount before the learned Magistrate, he need deposit only the balance amount. Petitioner is also granted liberty to pay the amount directly to the first respondent and produce the receipt before the learned Magistrate and establish that the compensation payable to the first respondent was paid. Petitioner is directed to appear before Crl.R.P.368/2004 5 Judicial First Class Magistrate, Kanjirappally on 17.8.2010. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006