IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.Rev.Pet.No. 3593 of 2008 ---------------------------------------- CRL.A.157/2008OF IVTH ADDL.SESSIONS COURT, ERNAKULAM ST.1208/2005 OF JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVISION PETITIONER IN CRL.R.P/APPELLANT IN CRL.APPEAL/ ACCUSED IN S.T -------------------------------------------------------------------------------------------------------------------- K.ABRAHAM, AGED 53, S/O.ABRAHAM, KOYYORICAL HOUSE, H.N.L.NEW PRINT NAGAR,KARIKODE, KOTTAYAM DISTRICT. BY ADV. SRI.A.P.SUBHASH. RESPONDENT IN CRL.R.P/ RESPONDENT IN CRL.APPEAL/ COMPLAINANT IN C.C -------------------------------------------------------------------------------------------------------------------- 1. M.U.ABRAHAM, S/O UTHUP, MANKIDIYIL HOUSE PIRAVOM POST, ERNAKULAM DISTRICT. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3593 OF 2008 ............................................ DATED THIS THE 10th DAY OF NOVEMBER, 2008 ORDER Revision Petitioner is the accused and first respondent, the complainant in S.T.1208 of 2005 on the file of Judicial First Class Magistrate-III, Kochi. First respondent lodged the complaint contending that towards repayment of Rs.1,00,000/-, due to him, petitioner issued Ext.P3 cheque for Rs.20,000/- and when the cheque was presented for encashment, it was dishonoured under Ext.P4 for want of sufficient funds and in spite of Ext.P6 notice served on petitioner under Ext.P7, he did not pay the amount and thereby committed offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. Learned Magistrate, on the evidence of PW1 and Exts.P1 to P9, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one month and a compensation of Rs.5,000/-. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.157 of 2008. Learned Additional 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 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner was heard. Learned CRRP 3593/2008 2 counsel submitted that he is not challenging the conviction but sentence may be modified and petitioner may be granted time to pay the amount due under Ext.P3 cheque. 4. So long as sentence is not modified or varied as against the interest of first respondent/complainant, it is not necessary to issue notice to him. 5. Evidence of PW1 establish that Ext.P3 cheque was issued towards the repayment of the amount borrowed earlier and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Evidence also establish that first respondent has complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. Conviction of petitioner is perfectly legal and proper. 6. Then the only question is with regard to sentence. Considering the nature of the transaction, interest of justice will be met, if the sentence is modified with adequate compensation to first respondent. 7. Revision petition is allowed in part. Conviction of the petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs. 30,000/- and in default, simple imprisonment for two months. On realisation of fine, Rs.25,000/- is to CRRP 3593/2008 3 be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted three months time from today to pay the fine. Petitioner is directed to appear before the Magistrate on 11. 2.2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-