IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.Rev.Pet.No. 3712 of 2008() -------------------------------------- CRA.626/2007 of ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE DATED 8.7.2008 CC.176/2006 of JUDL.MAGISTRATE OF FIRST CLASS,KOYILANDY DATED 12.7.2007. .................... REVN. PETITIONER(S): --------------------------------- PREMAJAN.P.P., CLERK VADAKKUMBAD HIGH SCHOOL, P.O. PALERI, KUTTIADI. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------------------- 1. VIBEESH, S/O KUNHIRAMAN, MANANTHALA HOUSE, P.O.MELUR, KOYILANDY. 2. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.R.P.No. 3712 of 2008 ================== Dated this the 17th day of November, 2008. O R D E R The revision petitioner is the accused and first respondent the complainant in C.C. 176/2006 on the file of Judicial First Class Magistrate, Koyilandy. The petitioner was convicted for the offence under Section 138 of Negotiable Instruments Act. The petitioner challenged the conviction before Sessions Court, Kozhikode in Criminal Appeal No. 626 of 2007. The learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence. This revision is filed challenging the conviction and sentence. 2. The learned Counsel appearing for the revision petitioner was heard. The learned counsel submitted that revision petitioner is not challenging the conviction but is challenging only the sentence. The learned counsel made an endorsement to that effect in the revision petition. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to the first respondent. 3. The evidence established that Ext.P1 dishounoured Crl.R.P.No. 3712 of 2008 -2- cheque was issued towards repayment of Rs. 35,000/- borrowed by revision petitioner and it was dishonoured for want of sufficient funds and first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of the petitioner for the offence under Sections 138 of Negotiable Instruments Act is perfectly legal. Ext.P1 cheque is only for Rs. 35,000/-. Considering the nature of the offence, sentence of imprisonment of four months apart from the compensation awarded by the courts below is excessive. Interest of justice will be met if the sentence is modified. Revision is allowed. Conviction is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs. 38,000/- and in default, simple imprisonment for two months. On realisation, fine of Rs. 36,000/- is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Revision petitioner is granted six months time to pay the fine. M.SASIDHARAN NAMBIAR JUDGE rhs/-