IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 3586 of 2008() ------------------------------ CRA.184/2006 of ADDL. SESSIONS COURT (ADHOC), MAVELIKKARA CC.804/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KAYAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- GOPALAKRISHNA PILLAI, S/O.GOVINDA PANICKER, KALATHIL VEEDU, MENAMPALLY MURI, PERINGALA VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/COMPLAINANT & ACCUSED ------------------------------------------------ 1. NIZAMUDHEEN, S/O.HASSANKUNJU, PERUMBALATHU VEEDU, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO.3586 OF 2008 -------------------------------------------------- Dated this the 20th day of January, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in CC 804 of 2004 on the file of Judicial First Class Magistrate, Kayamkulam. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. He challenged the conviction before Additional Sessions Court, Mavelikkara in Crl. Appeal 184 of 2006. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to simple imprisonment for three months in addition to compensation of Rs.2,85,000/- and in default simple imprisonment for two months. Revision is filed challenged the conviction. 2. Learned counsel appearing for revision petitioner in view of the evidence on record and concurrent findings of fact submitted that revision petitioner is not challenging the conviction but the sentence may be modified and because of the financial conditions of the petitioner six months time may be granted to pay the amount. 3. On going through the judgments of the Courts below, I CRRP 3586/2008 2 find no reason to interfere with the conviction. Evidence establish that revision petitioner issued Ext.P1 cheque in discharge of the existing liability and the cheque when presented for encashment, was dishonoured for want of sufficient funds. It is also established that first respondent had complied with all 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 is perfectly legal. 4. Then the question is regarding the sentence. 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 first respondent. As per the modified sentence first respondent is entitled to Rs.2,85,000/- as compensation, which is the amount covered by the dishonoured cheque. 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 of Rs.2,90,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.2,85,000/- is to be paid to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. 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 CRRP 3586/2008 3 imprisonment till rising of Court and a fine of Rs.2,90,000/- and in default simple imprisonment for three months. On realisation of fine, Rs.2,85,000/- to be paid to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision petitioner is granted six months time to pay the fine. Revision petitioner is directed to appear before Judicial First Class Magistrate, Kayamkulam on 20.7.2009. M. SASIDHARAN NAMBIAR, JUDGE okb