IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Crl.Rev.Pet.No. 3735 of 2008() ------------------------------ CRA.535/2006 of I ADDL. SESSIONS COURT, PALAKKAD ST.553/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- N.IYYATHUTTY, D/O.ANIKUTTY HAJI, KALATHILTHODI VEEDU, VALIYAKUNNU, VALANCHERRY. BY ADV. SRI.P.R.AJITHKUMAR SRI.GEORGE JOHNSON RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAMACHANDRAN, NADAKKAVI VEEDU, NADUVATTOM AMSOM, OTTAPALAM TALUK. PUBLIC PROSECUTOR SRI. C.M.KAMAPPU SRI.P.K.MOHANAN(PALAKKAD) FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.Revision Petition No. 3735 of 2008 and Crl.M.A.No.10116/2008 ----------------------------------------------------------- Dated this the 18th day of November, 2008 O R D E R Revision Petitioner is the accused in S.T.No.553/2000 on the file of Judicial First Class Magistrate Court, Pattambi. Second respondent herein is the complainant. Petitioner is convicted for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before the Sessions Judge, Palakkad in Criminal Appeal No.535/2006. Learned Sessions Judge on re-appreciation confirmed the conviction and sentence and dismissed the appeal. The sentence confirmed is simple imprisonment for two months and compensation of Rs.40,000/-. Revision petition is filed challenging the conviction and sentence. Crl.R.P.No.3735/2008 - 2 - 2. Learned counsel appearing for the revision petitioner was heard. Learned counsel made an endorsement in the revision that revision petitioner is not challenging the conviction and only seeks modification of the sentence and prayed six months' time to pay the fine. So long as the sentence is not varied or modified against the interest of second respondent, it is not necessary to issue notice to second respondent. 3. Learned Magistrate and learned Sessions Judge on proper appreciation of evidence found that Exhibit P1 cheque was issued by the revision petitioner to second respondent, towards payment of legally recoverable debt and it was dishonoured for want of sufficient funds. Second respondent had complied with the statutory formalities provided under Sections 138 and 142 of Negotiable Crl.R.P.No.3735/2008 - 3 - Instruments Act. These factual findings are not challenged. Hence, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 3. Then, the only question for consideration is whether sentence is reasonable. Exhibit P1 cheque is for Rs.40,000/- and was issued on 19-12-1999. Considering the nature of the offence, interest of justice will be met, if sentence is modified till rising of the court and fine which on realisation is to be paid to the second respondent. Revision petition is allowed in part. Conviction for the offence under Section 138 is confirmed. Sentence is modified. Petitioner is sentenced to undergo imprisonment till rising of court and to a fine of Rs.45,000/- and in default to undergo simple imprisonment for a period of two months. Crl.R.P.No.3735/2008 - 4 - On realization of fine, Rs.41,000/- is to be paid to second respondent as compensation under Section 357(1) of Cr.P.C. Revision Petitioner is granted six months' time to pay the fine. M. SASIDHARAN NAMBIAR, JUDGE skr