IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 19TH JULY 2008 / 28TH ASHADHA 1930 Crl.Rev.Pet.No. 2412 of 2008() ------------------------------ C.C.NO.92 OF 1999 ON THE FILE OF THE J.F.C.M, MATTANNUR CRA NO.530 OF 2002 ON THE FILE OF THE ADDL.SESSIONS JUDGE, AD HOC III, THALASSERY REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED:- ----------------------------------------------------------------------------------------------------------------- CHANDRA BOSE, S/O AYYAPPAN, AGED 46 YEARS, BARBER, RESIDING AT MELADATH HOUSE, VAYATHOOR AMSOM, PARIKKALAM, P.O. ULLICKAL, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENTS: RESPONDENTS/COMPLAINT & STATE:- ---------------------------------------------------------------------------------------- 1. TOMY VETTIKKATTIL, S/O BABY, AGED 44 YEARS, VATTIKATTIL HOUSE, ARABI P.O., ULLICKAL, KANNUR DISTRICT. 2. STATE OFKERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.2412 of 2008 = = = = = = = = = = = = = = Dated this the 19 th day of August, 2008 ORDER Revision petitioner, who was the accused in C.C.No.92 of 1999 on the file of the J.F.C.M, Mattannur which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881, challenges the conviction entered and the sentence passed against him by the lower appellate court namely Additional Sessions Court, Thalassery in Crl.Appeal No.530 of 2002. The cheque in question was for a sum of Rs.10,000/- (Rupees ten thousand only). The trial court convicted the revision petitioner and sentenced him to undergo simple imprisonment for one month and to pay the cheque amount of Rs.10,000/- as compensation to PW1 under Section 357(3) Cr.P.C. An appeal was preferred by the revision petitioner as Crl.Appeal No.530 of 2005 before the Sessions Court, Thalassery. Eventhough the conviction was confirmed, that court modified the sentence to one of imprisonment till the rising of the court and to pay the cheque amount as compensation Crl.R.P.No.2412 of 2008 2 under Section 357(3) Cr.P.C with a default sentence of simple imprisonment for one month. 2. According to the petitioner, as evidenced by Annexure-I certificate issued by the Superintendent, Central Prison, Kannur, he had already undergone the substantive sentence of imprisonment of one month as imposed by the trial court and since the trial court did not impose any default sentence, the petitioner who was released from custody on 10.1.03 after serving the sentence was burdened with an imprisonment for one more month by way of default sentence by the lower appellate court. According to the revision petitioner, in an appeal filed by him he should not have been placed in a more disadvantagous position than before when he filed the appeal. The fact that the petitioner was undergoing the sentence of imprisonment imposed by the trial court does not appear to have been brought to the notice of the lower appellate court. When the petitioner has already served the sentence of imprisonment for one month imposed by the trial court and he had no obligation to undergo any default sentence for the non- payment of the compensation as per the judgment of the trial Crl.R.P.No.2412 of 2008 3 court, the lower appellate court ought not to have burdened the revision petitioner with a default sentence and put him in a more disadvantageous position, than before. Accordingly, the default sentence imposed by the lower appellate court is set aside. In all other respects the judgment of the lower appellate court is confirmed. This Crl.R.P. is disposed of as above. Dated this the 19 th day of August, 2008. V. RAMKUMAR, JUDGE sj