IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 235 of 2009() ----------------------------- CRA.502/2008 of ADDL. SESSIONS COURT, (ADHOC-II), ERNAKULAM ST.1351/2005 of JUDICIAL MAGISTRATE OF FIRAST CLASS COURT- II, NPARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- ALPHONSA, W/O.VARGHESE, KADAMPUKADU HOUSE, CHATHANADU KARA, EZHIKKARA VILLAGE P.O., N.PARUR. BY ADV. SRI.TITUS MANI VETTOM SRI.S.SURAJ (PALATHANATHU) RESPONDENT(S): RESPONDENTS IN APPEAL/COMPLAINANT & STATE: ------------------------------------------------- 1. M.V.GEORGE, S/O.VARGHESE, MARATHOMTHARA HOUSE, CHATHANADU KARA, EZHIKKARA VILLAGE P.O., N.PARUR. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO. 235 OF 2009 -------------------------------------------------- Dated this the 20th day of January, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 1351 of 2005 on the file of Judicial First Class Magistrate-II, North Parur. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Additional Sessions Court, Ernakulam in Crl. Appeal 502 of 2008. Learned Additional Sessions Judge confirmed the conviction but modified the sentence to simple imprisonment for one month and fine of Rs.2,50,000/- with a direction to pay fine on realisation to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner, in view of the evidence on record and the concurrent findings of fact, submitted that revision petitioner is not challenging the CRRP 235/2009 2 conviction but the sentence may be modified and revision petitioner may be granted six months time to pay fine as he is negotiating to sell the property to enable him to pay the amount. 3. On going through the judgments I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.2,50,000/- from first respondent and issued Ext.P1 cheque towards its repayment which was dishonoured for want for sufficient funds when presented for encashment. Records also establish that first respondent had complied with all statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 4. Then the question is regarding the sentence. So long as the sentence is not varied or altered against the interest of first respondent, it is not necessary to issue notice to first respondent. As per the modified sentence, first respondent is to get a compensation of Rs.2,50,000/- on realisation of fine. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified CRRP 235/2009 3 providing compensation to first respondent. Revision is allowed in part. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of Court and fine of Rs.2,50,000/- to be paid within six months and in default simple imprisonment for three months. On realisation of fine it is to be paid to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. Revision petitioner is directed to appear before Judicial First Class Magistrate, North Parur on 20.7.2009. M. SASIDHARAN NAMBIAR, JUDGE okb