IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 3338 of 2008() ------------------------------ CRA.545/2007 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-II), KOZHIKODE CC.544/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, PERAMBRA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------- M.RAGHAVAN, S/O NARAYANAN NAMBIAR, MALAYIL HOUSE, CHERUVANNUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT/RESPONDENT/COMPLAINANT & STATE: --------------- 1. NARAYANAN NAIR, S/O KELU NAIR, NAGATH THAZHE HOUSE, MUYIPPOTH AMSOM DESOM, KOYILANDY TALUK, KOZIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3338 OF 2008 ------------------------------------------ Dated this the 7th day of October, 2008 O R D E R Petitioner was concurrently convicted and sentenced for offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of the first respondent is that towards repayment of Rs.1,50,000/-, which was borrowed by the petitioner, Ext.P1 cheque drawn in his account maintained in Perambra branch of State Bank of India was issued and when it was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2 and under Ext.P3 notice served on the petitioner under Ext.P5 acknowledgement card, the amount covered under Ext.P1 cheque was demanded. Petitioner failed to pay the amount and thereby committed the offence. Petitioner pleaded not guilty. 2. Learned First Class Magistrate, Perambra on the evidence of PW1 and Exts. P1 to P5 found petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.1,50,000/- and in default CRRP 3338/08 2 simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl. Appeal 545 of 2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel submitted that petitioner is not challenging the conviction, but only the sentence and it may be modified and petitioner may be granted four months time to pay the amount covered by the dishonoured cheque. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. 5. Learned Magistrate and learned Sessions Judge on the evidence of PW1 found that petitioner had borrowed Rs.1,50,000/- from first respondent and issued Ext.P1 cheque drawn in his account, towards its repayment and when it was presented for encashment it was dishonoured for want of sufficient funds. I find no reason to interfere with the finding of the Courts below as it is in accordance with the evidence. CRRP 3338/08 3 Evidence also establish that first respondent has complied with all the statutory formalities provided under sections 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is therefore perfectly legal and correct. 6. Then the only question is with regard to the sentence. The learned Magistrate sentenced petitioner to simple imprisonment for six months in addition to a compensation which was the amount covered by the cheque with a default sentence. In view of the declaration of law by the Apex Court, default sentence cannot be part of the compensation awarded under section 357(3) of Code of Criminal Procedure. Therefore to that extent the sentence is to be modified. From the facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of the Court in addition to a fine of Rs.1,60,000/- with a default sentence of simple imprisonment for three months with a direction to pay a compensation of Rs.1,52,000/- to the first respondent, on realisation of the fine under section 357(1) of Cr.P.C. The revision is allowed in part. Conviction of the petitioner for the offence under section 138 of N.I. Act is CRRP 3338/08 4 confirmed. The sentence is modified as follows:- Petitioner is sentenced to imprisonment till rising of the Court and a fine of Rs.1,60,000/- to be paid within four months from today and in default simple imprisonment for three months. On realisation of the fine, Rs.1,52,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is directed to appear before the Magistrate on the expiry of four months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-