IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.Rev.Pet.No. 48 of 2010() ---------------------------- CC.317/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM .................... REVN. PETITIONER/COMPLAINANT: -------------------------------------- A.M. POULOSE, S/O. MATHEW, ANTHINATTUKUDIYIL HOUSE, INCHOOR KARA, KOZHIPPILLI P.O., KOTHAMANGALAM. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS/ACCUSED & STATE --------------------------------------- 1. P.U. JOSEPH, S/O. ULAHANNAN, PUNNEKOTTAYIL HOUSE, KOZHIPPILLI P.O., KOTHAMANGALAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED SRI.K.M.KURIAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C.HARI RANI, J * * * * * * * * * * * * Crl.R.P.No.48 of 2010 --------------------------------- Dated this the 3rd day of June 2011 O R D E R The revision petitioner herein is the complainant in C.C.No.317/06 on the file of the Judicial First Class Magistrate Court, Kothamangalam who is challenging the sentence passed by the court below for the reason that no default sentence is awarded against the 1st respondent/accused who was found guilty for the offence under Section 138 of the Negotiable Instruments Act and also sentenced to undergo S.I till rising of the court and to pay compensation of Rs.50,000/- to the complainant u/s.357(3) Cr.P.C. As per the impugned judgment dated 21/11/2009, it was also ordered by the learned Magistrate that the compensation amount, if realised, shall be paid in full to the complainant as compensation under Section 357(1) Cr.P.C. The accused has not challenged the conviction and sentence passed against him, submitted by the learned counsel for the revision petitioner. 2. Heard the learned counsel for the revision petitioner/complainant and the learned Public Prosecutor. Crl.R.P.No.48/10 2 3. The trial court, after considering the evidence adduced on the side of the complainant as PW1 and the documentary evidence of Exts.P1 to P10, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and the accused was convicted for the said offence under Section 255(2) Cr.P.C as stated in the judgment dated 21/11/2009. After considering the facts and circumstances of the case, it was found by the learned Magistrate that there was no reason to invoke the benevolent provisions of Probation of Offenders Act. The learned counsel relying on the decision reported in Vijayan v. Sadanandan.K [(2009) 6 SCC 652] submitted that while awarding compensation under Section 357 (3) Cr.P.C the court is within its jurisdiction to add a default sentence of imprisonment which was not ordered in the present case. So, it is prayed for re-consideration of the sentence by awarding default sentence also. 4. In the circumstances, to meet the ends of justice in the present case and by exercising the power of revision I am inclined to modify the sentence to the extent of granting two months time to the 1st respondent/accused to pay/deposit the compensation amount of Rs.50,000/- as ordered by the trial court and in default to undergo simple imprisonment for two months. Crl.R.P.No.48/10 3 5. In the result, a) This revision petition is allowed in part. b) The impugned concurrent verdict of guilty and conviction of the first respondent/accused under Section 138 of the Negotiable Instruments Act is confirmed. c) The sentence imposed on the 1st respondent/accused to undergo S.I till rising of the court and to pay a compensation of Rs.50,000/- to the complainant under Section 357(3) Cr.P.C is also confirmed. (d) The 1st respondent/accused is directed to pay/deposit the compensation amount of Rs.50,000/- within a period of two months from today and in default to undergo S.I for two months. The amount if deposited shall be released to the revision petitioner/complainant on proper application. The learned Magistrate is directed to issue notice for appearance of the 1st respondent/accused and also to his sureties to produce the 1st respondent/accused for execution of the sentence of imprisonment till rising of court imposed on the 1st respondent/accused before issuance of warrant against him. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.48/10 4 Crl.R.P.No.48/10 5 Crl.R.P.No.48/10 6 M.C.HARI RANI, J Crl.R.P.No.504 of 2001 Crl.R.P.No.48/10 7 ORDER 17th DAY OF JUNE 2001 Crl.R.P.No.48/10 8