IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3315 of 2008() ------------------------------ AGAINST THE ORDER IN CC.452/2000 of JFCM, PERUMBAVOOR CRA.1005/2004 of ADDL.DIST AND SESSIONS COURT(ADHOC III) NORTH PARAVUR) REVN. PETITIONER(S): --------------------- M.D.DAVIS, MALIYEKKAL HOUSE ST.PETER'S LINE, PERUMBAVOOR BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- 1. JAIN JACOB, CHAMAKKALAYIL HOUSE M.C.ROAD, PERUMBAVOOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PP SRI P RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3315 OF 2008 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 138 of N.I.Act by Judicial First Class Magistrate, Perumbavoor in C.C.452 of 2000. First respondent is the complainant. Case of first respondent is that petitioner borrowed Rs.1,50,000/- on two occasions and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in the Bank and when the cheque was presented for encashment, it was dishonoured under Ext.P2, for want of sufficient funds and in spite of Ext.P3 notice served on the petitioner, demanding the amount covered by the cheque, which was received by petitioner under Ext.P5 acknowledgement, petitioner did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Learned Magistrate, on the evidence of first respondent as PW1 and petitioner as DW2 and witness as DW1 and Exts. P1 to P5, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months, in addition to a compensation of Rs.1,51,000/- under Section 357(3) of Code of Criminal Procedure with default sentence of simple imprisonment for a period of 45 days. Petitioner challenged the CRRP 3315/2008 2 conviction and sentence before Sessions Court, North Paravur in Crl.A.1005 of 2004. 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 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. Though notice was sent to first respondent in the application for condonation of delay and it was served, he did not appear. 4. Learned counsel appearing for petitioner submitted that in the light of the evidence, petitioner is not challenging the conviction, but sentence may be modified. It is submitted that consequent to the dismissal of the appeal, petitioner was arrested on 22.9.2008 and since then petitioner is in jail and in such circumstances, the sentence may be modified to the period he had already undergone and petitioner may be granted three months' time to pay the amount covered by the cheque. 5. Evidence establish that Ext.P1 cheque was issued towards discharge of existing liability. It is also proved that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of petitioner for the offence under Section 138 of N.I.Act, is perfectly legal and regular. CRRP 3315/2008 3 6. Then the only question is with regard to the sentence. Interest of justice will be met, if the sentence is modified to imprisonment for the period which petitioner had already undergone and a fine of Rs.1,52,000/-, to be paid within three months and in default, simple imprisonment for three months. 7. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment for the period already undergone by the petitioner and a fine of Rs.1,52,000/-, to be paid within three months from today and in default, simple imprisonment for three months. On realisation of the fine amount, Rs,1,51,000/- is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. If petitioner has deposited any amount before learned Magistrate, he need deposit only the balance of the fine. Release the petitioner from prison forthwith, if not wanted in any other case. M.SASIDHARAN NAMBIAR, JUDGE lgk/-