IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 Crl.Rev.Pet.No. 266 of 2009() ----------------------------- CRA.686/2007 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.1188/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- SHANMUGHAN, S/O.KRISHNAN, PARAKKALAM, PALLASSANA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ----------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GOPAKUMAR, S/O.MALAN, KANIYAMPADAM,MANKARA, PALAKKAD DISTRICT. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/1 /2009 THE COURT ON 22/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 266 OF 2009 =========================== Dated this the 22nd day of January,2009 ORDER Revision petitioner is the accused and second respondent the complainant in S.T.1188/2006 on the file of Judicial First Class Magistrate-I, Palakkad. Revision petitioner was convicted and sentenced to simple imprisonment for two months and compensation of Rs.75,000/-. Revision petitioner challenged the conviction and sentence before Additional Sessions Court, Palakkad in Crl.A.686/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence to imprisonment till rising of court and maintained the compensation with the default sentence. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner was heard. CRRP 266/2009 2 3. Learned counsel appearing for the revision petitioner submitted that in view of the evidence on record and the concurrent conviction, revision petitioner is not challenging the conviction but because of his financial conditions revision petitioner may be granted four months time to pay the compensation. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. 5. Evidence establish that Ext.P1 cheque was issued for Rs.75,000/- in discharge of the amount borrowed earlier. Evidence also establish that cheque was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act, in such circumstance, is perfectly legal. 6. Then the question is regarding the sentence. Learned Additional Sessions Judge modified the substantive sentence to imprisonment CRRP 266/2009 3 till rising of court and maintained the sentence with the default sentence. As there cannot be a default sentence for a compensation under section 357(3) of the Code of Criminal Procedure, to that extent the sentence is illegal. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to a fine of Rs.75,000/- and in default simple imprisonment for two months. Revision is allowed in part. Conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to fine of Rs.75000/- and in default simple imprisonment for two months. On realisation of the fine, it is to be paid to second respondent as compensation under section 357(1)(b) of the Code of Criminal Procedure. Revision petitioner is granted four months time from today to pay the fine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006