IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 16 of 2009() ---------------------------- CRA.475/2004 of SESSIONS COURT, THALASSERY CC.14/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- C.M.MOOSA, S/O.IBRAHIM, AGED 51 YEARS, CHIRUKANDOTH HOUSE, EDAYANNUR P.O. KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------- 1. K.T.THOMAS, S/O.THOMAS, KP III/10, KOODALI P.O. KANNUR DISTRICT. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 2/ 1 /2009 THE COURT ON 02/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 16 OF 2009 =========================== Dated this the 2nd day of January,2009 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.14/2003 on the file of Judicial First Class Magistrate, Mattannur. Revision petitioner was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.45,000/- and in default simple imprisonment for 30 days for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl.A.475/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. 3. Learned counsel submitted that in view of CRRP 16/2009 2 the concurrent findings of fact and the evidence on record, revision petitioner is not challenging the conviction but the substantive sentence may be modified and revision petitioner may be granted time to pay the amount. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.75,000/- and towards its repayment issued Exts.P1 to P3 cheques for a total amount of Rs.45,000/- and the cheques were dishonoured for want of sufficient funds. It is not disputed 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 Negotiable Instruments Act, in such circumstance, is perfectly legal. 5. Then the only question is regarding the sentence. So long as the sentence is not modified or varied against the interest of first respondent, CRRP 16/2009 3 it is not necessary to issue notice to first respondent. As per the sentence confirmed by the Sessions Judge, first respondent is entitled to a compensation of Rs.45,000/- and revision petitioner was sentenced to simple imprisonment for three months in addition to the compensation. Considering the entire facts and circumstances of the case, interest of justice will be met, if the substantive sentence is reduced to imprisonment till rising of court with a modification that revision petitioner has to pay a fine and a direction to pay the fine on realisation as compensation to first respondent. Revision is allowed in part. Conviction of the 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 a fine of Rs.50,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.46,000/- is to be paid to first respondent CRRP 16/2009 4 as compensation under section 357(1) of the Code of Criminal Procedure. Revision petitioner is granted four months time to pay the fine. Revision petitioner is directed to appear before the Judicial First Class Magistrate on 4.5.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006