IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3813 of 2008() ------------------------------ AGAINST THE ORDER DATED 23/11/2002 IN CRA.566,567 & 568/01 IN CRA.569/2001 of II ADDL.SESSIONS COURT, ERNAKULAM CC.382/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM (CC.383,467 & 468/98) .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------------------ JAYAKUMAR, AGED 37 YEARS, S/O. KARUNAKARAN PILLAI, VADAKKANEZHATHU HOUSE, POOCHACKAL P.O., CHERTHALA. BY ADV. SRI.K.RONALD JOSE SRI.V.P.MOHAMMED NIYAZ RESPONDENT(S): --------------- 1. M/S VITHAYATHIL SALES CORPORATION, 37/410 B, 1ST FLOOR, P.O. LINK ROAD, BROADWAY, COCHIN -31, REPRESENTED BY ITS PARTNER, V.X ANTONY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/11/2008, ALONG WITH CRL.R.P.3814/2008 AND CONN.CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NOS. 3813, 3814, 3816 & 3815 OF 2008 ............................................ DATED THIS THE 25TH DAY OF NOVEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.Nos. 382, 383, 467 and 468 of 1998 on the file of Chief Judicial Magistrate(Economic offences), Ernakulam. First respondent lodged four complaints alleging that towards payment due from revision petitioner for the purchase of textile items from respondent, revision petitioner issued Exts.P2, P7, P12 and P17 cheques respectively dated 27.1.1997, 5.2.1997, 22.1.1997 and 10.2.1997 for Rs.15,000/-, Rs.15,000/- Rs.15,000/- and Rs.12,238/- drawn in his account maintained in Poochakkal branch of Alappuzha District Co-operative Bank and when the cheques were presented for encashment through the account of first respondent, in Marine Drive Branch of State Bank of Travancore, under Ext.P3, P8, P13 and P18 the cheques were dishonoured for want of sufficient funds. First respondent sent Exts.P5, P10, P15 and P20 notices demanding the amount covered by the dishonoured cheques which were received by petitioner under Ext.P6, P11, P16 and P21. As petitioner failed to pay the amount, he committed the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty in all the cases. On the side of first Crrp 3813/2008 & conn. 2 respondent, PW1 was examined and Exts.P1 to P22 were marked. On the side of petitioner, he was examined as DW1 and Exts.D1 to D5 were marked. 2. Learned Magistrate, on appreciation of evidence, found the petitioner guilty in all the cases. He was convicted and sentenced to simple imprisonment for three months and fine. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.Nos. 566, 567, 568 and 569 of 2001. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeals. These revision petitions are filed challenging the conviction and sentence. 3. Learned counsel appearing for petitioner was heard. Learned counsel filed a statement in each of the revision petition stating that revision petitioner is not challenging the conviction but only seeks modification of the sentence. 4. On going through the judgments of the courts below, I find no reason to interfere with the factual findings. Evidence establish that petitioner used to purchase textile items from first respondent on credit basis and towards the amount due, had issued Exts.P2, P7, P12 and P17 cheques, drawn in his account. It is also proved that all the cheques were dishonoured for want of sufficient funds and in spite of notices served on the petitioner demanding the amount covered by Crrp 3813/2008 & conn. 3 the dishonoured cheques, he did not pay. It is also proved that first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Conviction of petitioner for the offence under Section 138 of N.I.Act in each of the case is perfectly legal and warrants no interference. 5. Then the only question is regarding the sentence. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 6. Learned Magistrate sentenced petitioner in C.C.Nos.382, 383 and 467 of 1998 to simple imprisonment for three months each and a fine of Rs.20,000/- each with a direction to pay Rs.18,000/- on realisation to first respondent as compensation. In C.C.468 of 1998, petitioner was sentenced to simple imprisonment for three months and a fine of Rs.18,000/- and in default simple imprisonment for one month. On realisation of fine, Rs.14,000/- was directed to be paid to first respondent. Considering the nature of the offence and circumstances of the case, interest of justice will be met if substantive sentence is modified to imprisonment till rising of court with adequate compensation to first respondent. 7. Revision petitions are allowed in part. Conviction of the revision petitioner for the offence under Section 138 of N.I.Act in all the cases is confirmed. Sentence is modified. The substantive Crrp 3813/2008 & conn. 4 sentence in each case is modified to imprisonment till rising of court while confirming the sentence of fine and the direction to pay the compensation to first respondent on realisation. 8. Revision petitions are allowed. Conviction for the offence under Section 138 of N.I.Act is confirmed. Sentence of imprisonment modified in each case to imprisonment till rising of court. Sentence of fine and direction to pay compensation out of the fine realised is confirmed. Revision petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 28.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-