IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3535 OF 2008() ------------------------------ CRA.550/2006 of SESSIONS COURT, PALAKKAD ST.676/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------- SIVANANDAN, S/O.VELAYUDHAN, ERAVAKKAD HOUSE, CHITHALI POST, KUZHALMANNAM, PALAKKAD DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. K. ARAVINDAKSHAN, S/O.KUTTAN, KURUPPATH HOUSE, GARDEN STREET, KOPPAM, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3535 OF 2008 ------------------------------------------ Dated this the 17th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T.676 of 2005 on the file of Judicial First Class Magistrate-II, Palakkad. Petitioner was convicted and sentence for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl. Appeal in 550 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months in addition to a compensation of Rs.2,00,000/-. The conviction and sentence is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel, in view of the evidence on record and the concurrent findings of fact, did not challenge the conviction. It was submitted that the sentence may be modified and petitioner may be granted five months time to pay the fine. CRRP3535/2008 2 4. On going through the judgments of the Courts below I find no reason to interfere with the conviction. Evidence establish that revision petitioner had borrowed Rs.2,00,000/- and towards its repayment issued Ext.P1 cheque dated 5.1.2005 and the cheque was dishonoured for want of sufficient funds and in spite of notice demanding the amount covered by the dishonoured cheque, revision petitioner did not pay the amount. It is also proved that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the revision petitioner for the offence under section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. So long as the sentence is not varied or modified against the interest of first respondent , it is not necessary to issue notice to first respondent. 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 a fine with a direction to pay the compensation to first respondent on realisation. Learned counsel submitted that revision petitioner may be permitted to pay the part of the fine, which is to be paid CRRP3535/2008 3 to first respondent as compensation directly to first respondent. Revision is allowed in part. Conviction of the revision petitioner for the offence under section 138 of N.I. Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of Court and a fine of Rs.2,10,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.2,00,000/- is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision petitioner is permitted to pay the portion of the fine payable to the first respondent as compensation directly and produce the receipt before the Magistrate and deposit the balance amount of fine and satisfy that balance of fine was paid as compensation. Revision petitioner is granted five months time to pay the fine. Revision petitioner is directed to appear before the Magistrate on 21.5.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-