IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 4093 of 2008() ------------------------------ CRA.600/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.2500/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER/ APPELLANT/ACCUSED: ------------------------------ THULASIDAS, AGED 37 YEARS, S/O. SANKU EZHUTHASSAN, THAZHATHETHIL VEED, CHENNANGAD, KOTTAYIL, PALAKKAD. BY ADV. MR. K.ANAND MR. BENNY ANTONY PAREL RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. N.R. MOHANDAS, AGED 34 YEARS, S/O. RAGHAVAN, MALLISSERY HOUSE, CHENNANGAD, KOTTAYIL, PALAKKAD. PUBLIC PROSECUTOR MR. P.R. JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.4093 OF 2008 -------------------------------------------------- Dated this the 2nd day of February, 2009 O R D E R Revision petitioner is the accused and second respondent the complainant in S.T.2500 of 2004 on the file of Judicial First Class Magistrate-I, Palakkad. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. He challenged the conviction before Sessions Court, Palakkad in Crl. Appeal 600 of 2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence to simple imprisonment for three months and fine of Rs.1,50,000/- and in default simple imprisonment for three months with a direction to pay the fine on realisation to second respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner submitted that there is no evidence to prove that Ext.P1 cheque was issued towards discharge of any debt or liability and CRRP 4093/2008 2 therefore the conviction is not sustainable. Learned counsel also submitted that Ext.P1 cheque was issued as a blank cheque and not towards discharge of any liability and in any case the sentence awarded is excessive. 3. On going through the judgments of the Courts below I find no reason to interfere with the conviction. Evidence of PW1 establish that revision petitioner borrowed Rs.1,50,000/- and towards its repayment issued Ext.P1 cheque. Though revision petitioner contended that the cheque was not issued to second respondent towards repayment of any amount and was a blank cheque issued towards the chitty transaction, on proper appreciation of evidence Courts below found that Ext.P1 cheque was issued towards repayment of the amount due. I find no reason to interfere with the factual findings which is in accordance with the evidence. It is not disputed that revision petitioner filed I.P. 1 of 2004 before Sub Court, Palakkad and second respondent was shown as one of the creditors and the amount covered by Ext.P1 cheque is shown as debt. Courts below rightly found that Ext.P1 cheque was issued towards discharge of the debt and not a blank cheque as claimed by the CRRP 4093/2008 3 revision petitioner. Evidence also establish that the cheque was dishonoured for want of sufficient funds and second respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 4. Then the question is regarding the sentence. Learned Additional Sessions Judge modified the sentence to simple imprisonment for three months and a fine of Rs.1,50,000/-, the amount covered by the dishonoured cheque with a direction to pay the fine on realisation to second respondent as compensation. So long as the sentence is not varied or altered against the interest of second respondent, it is not necessary to issue notice to second respondent. As per the modified sentence, second respondent is to get a compensation of Rs.1,50,000/-. 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 and fine of Rs.1,50,000/- and in default simple imprisonment for three months and providing that on realisation of fine it is to be paid to CRRP 4093/2008 4 second respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision is allowed in part. Conviction is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of Court and fine of Rs.1,50,000/- and in default simple imprisonment for three months. On realisation of fine, it is to be paid to second respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision petitioner is granted one months time to pay the compensation. Revision petitioner is directed to appear before Judicial First Class Magistrate-I, Palakkad on 3.3.2009. M. SASIDHARAN NAMBIAR, JUDGE okb