IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.Rev.Pet.No. 138 of 2009() ----------------------------- CRA.167/2004 of SESSIONS COURT, THALASSERY CC.523/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): APPELLANT ------------------------------ VAZHAYIL HASHIM, AGED 58 YEARS, S/O. SYED MUHAMMED, HABHAS, VANNAN VALAPPIL, NEAR EDACHOVVA U.P. SCHOOL, P.O. CHOVVA, KANNUR -6. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): RESPONDENTS -------------------------- 1. P. INDIRA, W/O. KISHORE, SUPER BAZAR, KANNUR. 2. STATE OF EKRALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 138 OF 2009 ............................................ DATED THIS THE 13th DAY OF JANUARY, 2009 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.523 of 2002 on the file of Judicial First Class Magistrate-I, Kannur. Revision petitioner was convicted for the offence under Section 138 of N.I.Act. Revision petitioner challenged the conviction before Sessions Court, Thalassery in Crl.A.167 of 2004. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel submitted that in view of the concurrent findings of the courts below and the evidence on record, revision petitioner is not challenging the conviction and is only seeking modification of the sentence and six months time to pay the fine. 3. On going through the judgments of courts below, I do not find any reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.92,000/- from first respondent and towards its repayment, issued Ext.P1 cheque for Rs.92,000/-, which was dishonoured when presented for encashment for want of sufficient funds and first respondent had complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. CRL.R.P.NO. 138 OF 2009 2 Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the question is with regard to the sentence. Learned Magistrate sentenced the revision petitioner to simple imprisonment for one year and a compensation of Rs.1,00,000/- with a default sentence of three months. Learned Sessions Judge confirmed the sentence. So long as 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, in addition to a fine with a direction to pay the fine to first respondent as compensation. 5. Revision petition is allowed in part. Conviction of 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.1,00,000/- and in default, simple imprisonment for three months. On realisation of fine, it is to be paid to first respondent as compensation under Section 357 (1)(b)of Code of Criminal Procedure. Revision petitioner is granted four months time from today to pay the fine. He is directed to appear CRL.R.P.NO. 138 OF 2009 3 before the Magistrate on 13.5.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk