IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 3673 of 2008() ------------------------------ CRA.172/2007 of ADDL.SESSIONS COURT, KOTTAYAM CC.940/2004 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.R.SURESH KUMAR, S/O.RAMAN, PARUMTHUDYMAKIYIL HOUSE, VAKKAD P.O. KATTAMBAKKU KARA, NJEEZHOOR VILLAGE, VAIKOM TALUK. BY ADV. SRI.N.N.ELAYATH SRI.P.C.EMMANUEL RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE ------------------------------------------------------------------ 1. A.V.BINOY, S/O.VISWAMBHARAN, AVANAKKUZHIYIL HOUSE, PAKALOMATTOM P.O. MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KERALA, ERNAKULAM. BY GOVERNMENT PLEADER SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3673 OF 2008 =========================== Dated this the 14th day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.940/2004 on the file of Judicial First Class Magistrate, Vaikom. Petitioner was convicted for the offence under section 138 of Negotiable Instruments Act. He was sentenced to imprisonment for one year and a compensation of Rs.2,00,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.172/2007. 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 petitioner was heard. 3. Learned counsel for the petitioner did not CRRP 3673/2008 2 challenge the conviction but only sought modification of the sentence and three months time to pay the amount covered by the dishonoured cheque. 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. 4. Learned Magistrate and learned Sessions Judge on appreciation of evidence found that Ext.P1 cheque was issued towards discharge of legally recoverable debt and it was dishonoured for want of sufficient funds and inpite of notice petitioner did not pay the amount. He was convicted for the offence under section 138 of Negotiable Instruments Act. I find no reason to interfere with the conviction on the evidence on record. 5. Then the only question is regarding the sentence. Ext.P1 cheque is for Rs.2,00,000/-. Interest of justice will be met if the sentence is modified to imprisonment till rising of court and a fine of Rs.2,00,000/- and in default simple CRRP 3673/2008 3 imprisonment for three months. On realisation of the fine, it is to be paid as compensation to first respondent. Criminal Revision Petition is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.2,00,000/- to be paid within three months from today and in default simple imprisonment for three months. On realisation of the fine, it is to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the Judicial First Class Magistrate, Vaikom on 18.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006