IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 3348 of 2008() ------------------------------ CRA.243/2007 of SESSIONS COURT (ADHOC-II), MANJERI. ST.115/2006 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER: APPELLANT/ ACCUSED --------------------------- RAVI THAMPAN @ RAVINDRAN THAMPAN, S/O.M.A.P.MOOSAD, 54 YEARS, SREEJANI HOUSE, POOLAPPATTA AMSOM , DESOM.,PALAKKAD. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/ RESPONDENTS/ COMPLAINANT AND STATE ------------------------- 1. JOSE, S/O.MATHEW, KUNNUMPURATH HOUSE PAYYANAD PO., MALAPPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, COCHIN-31. PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3348 OF 2008 ............................................ DATED THIS THE 13th DAY OF OCTOBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for simple imprisonment for one month for the offence under Section 138 of N.I.Act by Chief Judicial Magistrate, Manjeri. In addition, he was directed to pay a cost of Rs.750/- and in default, simple imprisonment for one day. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and a compensation of Rs.1,05,000/- and in default, simple imprisonment for two months. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner was heard. 3. The learned counsel argued that courts below did not properly appreciate the evidence and should have found that Ext.P1 cheque was not issued towards discharge of a legally recoverable debt and therefore the conviction is not sustainable. It was also argued that in any event, sentence awarded is excessive. Learned counsel further submitted that in case conviction and sentence is to be confirmed, petitioner may be granted four months' time to pay the amount. Crrp 3348/2008 2 4. Case of the first respondent was that petitioner borrowed Rs.1,05,000/- from him and towards its repayment, issued Ext.P1 cheque drawn on the then Nedungadi Bank Ltd, which was subsequently merged with Punjab National Bank and when the cheque was presented for encashment, it was dishonoured under Ext.P2, for want of sufficient funds and in spite of Ext.P4 notice served on the petitioner, demanding the amount covered by the cheque, which was received by petitioner under Ext.P6 acknowledgement card, petitioner did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. 5. Learned Chief Judicial Magistrate, on appreciation of evidence, found that Ext.P1 cheque was issued towards repayment of the amount due and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act and therefore convicted and sentenced the petitioner. Though learned counsel argued that evidence was not properly appreciated, on going through the judgments of the courts below, I cannot agree with the submission. Evidence establish that petitioner borrowed Rs.1,05,000/- from first respondent and issued Ext.P1 cheque towards its repayment. Evidence also establish that when the cheque was presented for Crrp 3348/2008 3 encashment, through the account maintained by first respondent in his bank, it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and correct. 6. Then the only question is with regard to the sentence. Though Chief Judicial Magistrate sentenced petitioner to simple imprisonment for one month, learned Sessions Judge modified the sentence to imprisonment till rising of court, in addition to compensation of Rs.1,05,000/-. Even though cheque was for Rs. 1,05,000/-, and was issued on 15.2.2006, compensation awarded was only for the amount covered by the cheque. Learned counsel argued that in view of the decision of the Apex Court, there cannot be a default sentence for the compensation awarded under Section 352(3) of Code of Criminal Procedure and therefore sentence is illegal. There is force in the submission. But that defect could be cured if instead of awarding a compensation, petitioner is sentenced to a fine with a default sentence and provision for payment of compensation under Section 357(1) of Code of Criminal Procedure. 7. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is Crrp 3348/2008 4 modified to imprisonment till rising of court and a fine of Rs.1,05,000/-, and in default, simple imprisonment for one month. On realisation of the fine, it is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted four months time to pay the fine from today. Petitioner is directed to appear before the learned Magistrate on the expiry of four months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-