IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3524 of 2008() ------------------------------ CRA.261/2004 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.82/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE),ALAPPUZHA .................... REVN. PETITIONER: APPELLANT /ACCUSED ----------------------------------------------- SABU R. S/O.RAVEENDRAN THOPPIL HOUSE, AVALOOKKUNNU P.O. ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S):RESPONDENTS/COMPLAINANT ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. S.JUSTINE, S/O.SEBASTIAN JOSEPH JOY VILLA, AVALOOKKUNNU P.O. ALAPPUZHA. BY PUBLIC PROSECUTOR SRI.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3524 OF 2008 =========================== Dated this the 31st day of October,2008 ORDER Revision petitioner is the accused in C.C.82/2003 on the file of Judicial First Class Magistrate-II, Alappuzha. Second respondent is the complainant. Case of the second respondent was that petitioner borrowed Rs.20,000/- and towards its repayment issued Ext.P1 cheque dated 11.10.2002 drawn in his account maintained in Alappuzha Branch of Canara Bank and when the cheque was presented for encashment through Kalavoor Branch of Union Bank where he has an account, under Ext.P2 it was dishonoured and Ext.P4 notice was sent in the correct address of the revision petitioner but he did not receive the notice and it was returned back and petitioner did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Second respondent was examined as PW1 and CRRP 3524/2008 2 Exts P1 to P6 were marked. Petitioner was examined as DW1 and Ext.D1 was marked. Learned Magistrate on the evidence found him guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.20,000/- and a cost of Rs.2000/-. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.261/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for petitioner was heard. 3. Revision petitioner filed a statement to the effect that he is not challenging the conviction. Learned counsel also did not challenge the conviction. As long as the sentence is not to be varied or modified as against the interest of second respondent, it is not necessary to issue notice to second respondent. 4.The evidence of PW1 appreciated in the light CRRP 3524/2008 3 of the evidence of DW1 establish that Ext.P1 cheque was issued towards the discharge of Rs.20,000/- borrowed earlier. Evidence also prove that the cheque was dishonoured for want of sufficient funds and second respondent has complied with all 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. The courts below sentenced the petitioner to simple imprisonment for three months and a compensation of Rs.20,000/- under section 357 (3) of the Code of Criminal Procedure and also a cost of Rs.2000/- under section 359 of Code of Criminal Procedure. Learned counsel appearing for the petitioner submitted that in execution of the sentence as confirmed by the learned Sessions Judge, petitioner was arrested and he is undergoing imprisonment and it is only because of his financial conditions petitioner could not pay the CRRP 3524/2008 4 amount and he may be granted some time to pay the amount covered by the dishonoured cheque. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to simple imprisonment for seven days and a fine of Rs.23,000/- and in default simple imprisonment for one month. On realisation of the fine, Rs.20,000/- is to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is granted two months time from today to pay the fine. If petitioner is undergoing imprisonment, he shall be released forthwith on the expiry of seven days, if he is not wanted in any other case. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006