IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 293 of 2009(B) ----------------------------- CRA.563/2008 of ADDL.SESSIONS JUDGE (ADHOC-III), NORTH PARAVUR CC.189/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER / APPELLANT / ACCUSED: ------------------------------------------------- B.SHAJI, AGED 42 YEARS, MALAYIL HOUSE, ERAVM KUNNAM POST, MAVELIKKARA, NOW RESIDING AT SREYAS, OPP TO ALUVA PALACE, ALUVA. BY ADV. MS.LIFFY P. FRANCIS RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------- 1. R. SUJATHA, D/O. RAMAN PILLAI, REVATHY HOUSE, THOTTUMUGHOM P.O., KUTTAMASSERY, ALUVA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- CRL.R.P.No. 293 OF 2009 -------------------------------------------------- Dated this the 2nd day of February, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.189 of 2004 on the file of Judicial First Class Magistrate-I, Aluva. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Additional Sessions Court, N. Paravur in Crl. Appeal 563 of 2008. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months and a fine of Rs.1,00,000/- and in default simple imprisonment for three months with a direction to pay the fine on realisation to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. CRRP 293/2009 2 3. Learned counsel appearing for revision petitioner submitted that revision petitioner did not get opportunity to examine the witness and submitted that a witness list was filed. In view of the submission revision petitioner was asked to make available a copy of the appeal memorandum to find out whether such a contention was taken as the ground in the appeal. When learned counsel made available a copy of the appeal memorandum, finding that no such contention was taken, learned counsel submitted that in view of the evidence on record and the concurrent findings of fact revision petitioner is not challenging the conviction and sentence may be modified and revision petitioner may be granted six months time to pay the fine. 4. On hearing the learned counsel and going through judgments of the Courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.1,00,000/- from first respondent and issued Ext.P1 cheque towards its repayment. It is also proved that the cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under CRRP 293/2009 3 section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the question is regarding the sentence. So long as the sentence is not varied or altered against the interest of first respondent, it is not necessary to issue notice to first respondent. As per the modified sentence, first respondent is to get a compensation of Rs.1,00,000/- the fine which is to be paid by the revision petitioner. Considering the entire facts and circumstances of the case interest of justice will be met if the sentence is modified to imprisonment till rising of Court and fine with a direction to pay compensation to first respondent out of the fine. Revision is allowed in part. Conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of Court and fine of Rs.1,10,000/- and in default simple imprisonment for two months. On realisation of fine Rs.1,00,000/- is to be paid to first respondent as compensation under section 357(1)(b) of Code of CRRP 293/2009 4 Criminal Procedure. Revision petitioner is granted five months time to pay the fine. Revision petitioner is directed to appear before Judicial First Class Magistrate, Aluva on 2.7.2009. M. SASIDHARAN NAMBIAR, JUDGE okb