IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3512 of 2008() ------------------------------ CRA.411/2006 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.173/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... REVN. PETITIONER(S): APPELLANT ------------------------------ K.ABDUL RAHIMAN S/O. SAIDALI, KODAKKADAN HOUSE KURUVATTUR P.O., VALLAPPUZHA, OTTAPPALAM TALUK. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): 1 ---------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. C.P.FATHIMAKUTTY D/O. KUNJAAN, CHETTITHODI POOVATHUMKUZHIYIL HOUSE EZUVANTHALA P.O., VELLAYA, OTTAPPALAM TALUK. BY PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3512 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and second respondent, the complainant in S.T.173 of 2004 on the file of Judicial First Class Magistrate, Ottapalam. Case of second respondent is that petitioner had to pay Rs.1,00,000/-, being the value of ornaments purchased and Rs.70,000/- was paid in cash and towards the balance, issued Ext.P1 cheque dated 30.9.2003 drawn in his account maintained in Vallapuzha branch of Vallappuzha Co-operative Urban Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2. Ext.P4 notice was sent demanding the amount covered by the cheque, which was received by petitioner but he did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Second respondent was examined as PW1 and Exts.P1 to P4 were marked. Petitioner did not adduce any evidence. Learned Magistrate, on the evidence, found the petitioner guilty. He was sentenced to simple imprisonment for three months, and a compensation of Rs.30,000/- and in default, simple imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.411 CRRP 3512/2008 2 of 2006. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court maintaining the compensation. It is challenged in this revision petition filed under Section 397 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. Learned counsel submitted that in view of the concurrent finding, he is not challenging the conviction or sentence. He only sought three months time to pay the compensation. 4. Evidence of PW1 establish that Ext.P1 cheque was issued towards repayment of balance amount after paying a portion of the amount due. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that second respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Conviction of petitioner is perfectly legal and proper. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court, in addition to a compensation with default sentence. In view of the decision of the Apex Court that when compensation is awarded under Section 357(3) of Code of Criminal Procedure, there cannot be a default sentence, to that extent, the sentence warrants CRRP 3512/2008 3 interference. Learned counsel submitted that petitioner is suffering from heart disease and in such circumstances, he may be granted three months time to pay the amount. Ext.P1 cheque is for Rs.30,000/-. Interest of justice will be met, if the sentence is modified with adequate compensation to second respondent. 6. Revision petition is allowed in part. Conviction of the petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.30,000/- to be paid within three months from today and in default, simple imprisonment for one month. On realisation of fine, it is to be paid to the second respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before the Judicial First Class Magistrate, Ottapalam on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-