IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3939 of 2008() -------------------------------------------- CRA.682/2007 of ADDL. DISTRICT & SESSIONS COURT.(FAST TRACK (ADHOC-II), KOZHIKODE. CC.403/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ T.K. SUKUMARAN, S/O. PERAVAKKUTTY, THAIKELOTH HOUSE, KARUMALA.P.O, BALUSSERY. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA SRI.ANEISH RAVINDRA RESPONDENT(S): RESPONDENTS -------------------------- 1. N.K. VASUDEVAN, S/O. GOPALAN NAIR, NARIKKODANKANDI HOUSE, THIRUTHIYAD.P.O, BALUSSERY VIA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3939 OF 2008 =========================== Dated this the 4th day of December,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.403/2006 on the file of Judicial First Class Magistrate-II, Perambra. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.1,00,000/- and in default simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.682/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. 3. Learned counsel in view of the concurrent CRRP3939/2008 2 findings and the evidence on record submitted that revision petitioner is not challenging the conviction but sentence may be modified and time may be granted to pay the amount covered by the dishonoured cheque. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. 5. Evidence establish that revision petitioner issued Ext.P1 cheque towards the discharge of Rs.1,00,000/- borrowed earlier. It is also proved that cheque was dishonoured for want of sufficient funds and first respondent sent Ext.P3 notice demanding the amount covered by the cheque within the statutory period and revision petitioner failed to pay the same and complaint was also filed within time. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 6. Then the only question is regarding the CRRP3939/2008 3 sentence. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine of Rs.1,10,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.1,00,000/- to be paid to first respondent as compensation under section 357 (1) of Code of Criminal Procedure. 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 fine of Rs.1,10,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.1,00,000/- to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision petitioner is granted CRRP3939/2008 4 five months time to pay the fine. Revision petitioner is directed to appear before the Magistrate on 5.5.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006