IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3502 of 2008() ------------------------------ CRA.93/2008 of ADDL.SESSIONS COURT-III, KOZHIKODE SC.391/2007 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- KHADEEJA ALI BASHA, W/O.ALIBASHA, AGED 45 YEARS, "ARIF", VIRUPOYIL, KUTTIKATTOOR, VELLIPARAMBA, KOZHIKODE. BY ADV. SMT.T.KAMALA MENON RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------ 1. NARAYANAN KUTTY NAIR, S/O.RAU NAIR, AGED 58 YEARS, PUNATHIL VEEDU, P.O.CHELAVOOR, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3502 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the accused and first respondent the complainant in S.T. 391 of 2007 on the file of Judicial First Class Magistrate, Kunnamangalam. Case of the first respondent was that petitioner borrowed Rs.75,000/- on 12.10.2006 agreeing to repay the same and when demanded, issued Ext.P1 cheque for Rs.75,000/- dated 16.11.2006 drawn in his account maintained in Kozhikode branch of Dhanalakshmi Bank. When Ext.P1 cheque was presented for encashment, under Ext.P2 it was dishonoured for want of sufficient funds. In spite of Ext.P3 notice served on the petitioner, he did not pay the same and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1. Ext.P1 to P5 were marked. Learned Magistrate on the evidence found the petitioner guilty. Petitioner was sentenced to imprisonment till rising of Court and a fine of Rs.75,000/- with a direction to pay the fine on realisation to first respondent as compensation and in default CRRP3502/08 2 simple imprisonment for one month under section 357(1) of Code of Criminal Procedure was awarded. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl. Appeal 93 of 2008. Learned 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. The learned counsel did not challenge the conviction but only sought time for payment of the fine. 3. Evidence of PW1 establishes that Ext.P1 cheque was issued towards repayment of Rs.75,000/- borrowed on 12.10.2006. Ext.P2 establishes that Ext.P1 cheque was dishonoured for want of sufficient funds. Ext.P3 with Ext.P5 establishes that petitioner was served with the notice demanding the amount covered by the dishonoured cheque within the statutory period and he did not pay. The complaint was also lodged within the period. Hence conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 4. Then the only question is with regard to the sentence. CRRP3502/08 3 Learned Magistrate sentenced petitioner for imprisonment till rising of the Court in addition to fine for the amount covered under Ext.P1 cheque. In such circumstances no interference is warranted in the sentence also. Revision is dismissed. Petitioner is granted four months time from today to pay the fine. She is directed to appear before Judicial First Class Magistrate, Kunnamangalam on the expiry of four months from today. If petitioner has deposited any amount before learned Magistrate pursuant to the conviction, she need deposit only the balance. M. SASIDHARAN NAMBIAR, JUDGE Okb/-