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. 3508 of 2008() ------------------------------ CRA.644/2007 of ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACT ADHOC-II, KOZHIKODE CC.681/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): --------------------- K.RAJAN S/O. KUNHIRAMAN, AGED 47 YEARS KUNNUMMAL HOUSE, VATTOLIY P.O. BALUSSERY VIA, KOZHIKODE. BY ADV. SMT.T.KAMALA MENON RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. P.RAMAKRISHNAN, S/O. CHATHUKUTTY, AGED 42 YEARS, PUTHIYOTTUMANDI HOUSE, BALUSSERY AMSOM, DESOM,KOZHIKODE TALUK 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 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. 3508 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in C.C.681 of 2006 on the file of Judicial First Class Magistrate-II, Perambra. Case of first respondent is that petitioner borrowed Rs.1,50,000/-, agreeing to repay within one month and he did not pay the same and when demanded, issued Ext.P1 cheque dated 8.10.2006 drawn in his account and when the cheque was presented for encashment, it was dishonoured under Ext.P2 for want of sufficient funds. In spite of sending Ext.P4 notice demanding the amount covered by the cheque, served on the petitioner in correct address, petitioner did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P7 were marked on his side. Learned Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced him to simple imprisonment for six months, in addition to a compensation of Rs.1,50,000/- and in default, simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.644 of 2007. CRRP 3508/2008 2 Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. 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 he is not challenging the conviction but sought modification of sentence and time for payment of fine. So long as sentence is not to be modified or varied as against the interest of first respondent/complainant, it is not necessary to issue notice to him. 4. Evidence of PW1 establish that Ext.P1 cheque was issued towards the repayment of the amount borrowed by petitioner earlier and Ext.P1 was dishonoured for want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Petitioner has no case that the address shown in Ext.P4 notice was not his correct address. Ext.P6 and P7 original notices sent in his official address as well as residence were returned as not claimed, in spite of service of intimation. Courts below in such circumstances, rightly found that notice was served and petitioner did not pay the amount. His conviction for the offence under Section 138 of N.I.Act. Conviction is perfectly legal and proper. CRRP 3508/2008 3 5. Then the only question is with regard to the sentence. Ext.P1 cheque is for Rs.1,50,000/-. Interest of justice will be met, if the sentence is modified with adequate compensation to first 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. 1,60,000/- and in default, simple imprisonment for two months. On realisation of fine, Rs.1,51,000/- to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. If petitioner has already deposited any amount before the Magistrate, he need only deposit the balance. Petitioner is granted three months time from today to pay that amount. Petitioner is directed to appear before the Magistrate on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk/-