IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 1322 of 2006() ------------------------------ CRA.481/2005 of II ADDL.SESSIONS COURT, ERNAKULAM CC.956/2003 of JUDICIAL FIRST CLASS MAGISTRATE,KOTHAMANGALAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- PRASANNAKUMAR, P.C.6946, CITY TRAFFIC POLICE STATION, KOMPARA, ERNAKULAM. BY ADV. SRI.TOMY SEBASTIAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------- 1. V.V. CHELLAPPAN, S/O. VELU, VENGOLA PUTHEN PURACKAL HOUSE, AIRRORKARA, KOTTAPPADY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.1322 OF 2006 =========================== Dated this the 28th day of October,2008 ORDER Petitioner is the accused and first respondent complainant in C.C.956/2003 on the file of Judicial First Class Magistrate, Kothamangalam. First respondent lodged the complaint contending that petitioner borrowed Rs.35,000/- in 1997 and when demanded issued Ext.P1 and Ext.P2 cheques drawn in his account maintained in Cheriyappilly branch of State Bank of India respectively for Rs.30,000/- and Rs.5000/- dated 30.11.1999 and 10.12.1999 and the cheques when presented for encashment dishonoured for want of sufficient funds. Inspite of Ext.P6 notice served on the petitioner, under Ext.P8 acknowledgement card, petitioner did not pay the amount and thereby committed the offence. First respondent was examined as PW1 and Exts.P1 to P8 were marked. Petitioner was not examined. A witness was examined as DW1 and Ext.D1 was marked. CRRP 1322/2006 2 Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment for four months and a compensation of Rs.35,000/- and in default simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.481/2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of the court and a compensation of Rs.35,000/- and in default simple imprisonment for two months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel appearing for petitioner did not challenge the conviction or the sentence and only sought time for appearance before the learned Magistrate and for payment of the money. 4. The evidence of PW1 and Dw1 were properly appreciated by the learned Magistrate and the CRRP 1322/2006 3 learned Sessions Judge. It was found that Exts.P1 and P2 cheques were issued towards repayment of Rs.35,000/- borrowed by the petitioner from first respondent. There is no case that any material piece of evidence was omitted to be appreciated by the courts below. On the evidence it can only be found that Exts.P1 and P2 cheques were issued towards discharge of legally recoverable debt. Evidence also establish that Exts.P1 and P2 cheques were dishonoured for want of sufficient funds. It is also not disputed that first respondent has complied with all the statutory formalities provided under section 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 apart from confirming the compensation. When compensation is granted under section 357(3) of the CRRP 1322/2006 4 Code of Criminal Procedure, a default sentence cannot be part of the sentence. Therefore to that extent the sentence warrants modification. Revision is allowed in part. Conviction is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.35,000/- and in default simple imprisonment for two months. Petitioner is directed to appear before the Magistrate on 26.11.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006