IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 3383 of 2008() ------------------------------ CRA.369/2006 of SECOND ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM CC.329/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVISION PETITIONER: APPELLANT:ACCUSED: ------------------------------------------------------------------------- RAJAN, S/O. SUBBAYYAN, AGED 64 YEARS, RESIDING AT TELECOM STAFF QUARTERS, QTR NO.B/6, PARUTHIPARA, NALAMCHIRA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.AYYAPPAN SANKAR RESPONDENTS: RESPONDENTS:COMPLAINANT: -------------------------------------------------------------------------- 1. MOHANAN, S/O. SANKAAN, PANIKKANVILA VEEDU, ALATHARAMOODU.P.O, ALAMCODE DESOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3383 OF 2008 ............................................ DATED THIS THE 16th DAY OF OCTOBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act. First respondent is the complainant. Case of first respondent is that petitioner borrowed Rs.3,00,000/- and towards its discharge, issued Ext.P1 cheque drawn in his account maintained in Nalanchira branch of Indian Bank on 1.7.2002 and when the cheque was presented for encashment, through Kilimanoor Branch of State Bank of Travancore, where he has an account, it was dishonoured under Ext.P2 for want of sufficient funds. First respondent sent Ext.P4 notice demanding the amount covered by the cheque. Though notice was served on the petitioner, he did not pay the amount and instead, sent Ext.P7 reply stating that he had borrowed only Rs.1,00,000/- and he is prepared to pay the same in nine instalments. First respondent contended that petitioner thereby committed offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Learned Magistrate, on the evidence of Pws1 and 2 and Exts. P1 to P11, found the petitioner guilty and convicted and sentenced him to simple imprisonment for three months, in addition to a compensation of Rs.3,05,000/- with default sentence for a period of three months under Section 357(3) of CRRP 3383/2008 2 Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.369 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and a compensation of Rs.3,00,000/- and in default, simple imprisonment for three months. The conviction and sentence is challenged in this revision petition filed under Section 397 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner submitted that he is not challenging the conviction and petitioner may be granted six months' time to pay the fine amount. 4. Learned Magistrate and learned Sessions Judge, on appreciation of evidence, found that Ext.P1 cheque was issued towards discharge of the existing liability. Though at the time of evidence, while cross examining first respondent as PW1, petitioner disputed Ext.P7 reply, which was sent by petitioner directly on receipt of Ext.P4 notice. In Ext.P7 reply, petitioner admitted the issuance of the cheque. He only contended that he received only Rs.1,00,000/- and sought time for payment of the amount in nine instalments. In the light of this evidence, courts below were justified in holding that Ext.P1 cheque was issued towards discharge of existing liability. Evidence of PW2 establish that Ext.P1 cheque was dishonoured for CRRP 3383/2008 3 want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and proper. 5. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioner to imprisonment for three months. Learned Sessions Judge modified it to imprisonment till rising of court. Therefore on that aspect, no interference is warranted. Learned Sessions Judge also modified the compensation of Rs.3,00,000/- with a default sentence. In view of the later decision of the Apex Court that when compensation is awarded under Section 357(3) of Code of Criminal Procedure, there cannot be a default sentence, to that extent, sentence warrants interference. The defect could be remedied by directing payment of Rs.3,00,000/- as fine with a default sentence of simple imprisonment for one month. Sentence is modified accordingly. 6. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs. 3,00,000/- and in default, simple imprisonment for one month. On realisation it shall be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is CRRP 3383/2008 4 granted four months time to pay the fine and to appear before learned Magistrate. Petitioner is directed to appear before learned Magistrate on the expiry of four months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-