IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3993 of 2008() ---------------------------------------- CRA.228/2008 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.1164/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------- SAJANA.S.,,D/O.DIVAKARAN AMBADY HOUSE, ARYADU SOUTH, KOMALAPURAM, AVALOOKKUNNU P.O.,ALAPPUZHA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------- 1. JOHN JOSEPH, KALLUPURACKAL VEEDU POONTHOPPU WARD, AVALOOKKUNNU P.O.,ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.Revision Petition No. 3993 of 2008 ----------------------------------------------------------- Dated this the 10th day of December, 2008 O R D E R Revision Petitioner is the accused and first respondent the complainant in C.C.No.1164/2006 on the file of Judicial First Class Magistrate Court, Alappuzha. Revision Petitioner was convicted for the offence under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for five months. Conviction and sentence was challenged before the Additional Sessions Court-II, Alappuzha in Criminal Appeal No.228/2008. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. Crl.R.P.No.3993/2008 - 2 - 3. Learned counsel appearing for the revision petitioner submitted that, in the light concurrent findings and the evidence on record, revision petitioner is not challenging the conviction, but the sentence may be modified. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.2,00,000/- and towards its repayment issued Exhibit P1 cheque, which was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. Though, revision petitioner raised a contention that Exhibit P1 cheque was created by her husband and she was undergoing psychiatric treatment, Crl.R.P.No.3993/2008 - 3 - no evidence was adduced. In such circumstance, conviction of the revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then, the question for consideration is whether sentence is reasonable. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 6. 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.2,00,000/- and in default simple imprisonment for two months. On realisation of fine, it is to be paid to the first respondent as compensation. Crl.R.P.No.3993/2008 - 4 - Revision petition is allowed in part. Conviction of the revision petitioner for the offence under Section 138 is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and to fine of Rs.2,00,000/- and in default to simple imprisonment for a period of two months. On realization of fine, it is to be paid to first respondent as compensation under Section 357(1)(b) of Code of Criminal Procedure. Revision Petitioner is granted four months' time to pay the fine. Revision petitioner is directed to appear before the Judicial First Class Magistrate, Alappuzha on 16-4-2009. Sd/- M. SASIDHARAN NAMBIAR, JUDGE skr // True copy // P.A. to Judge.