IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 342 of 2009() ----------------------------- CRA.234/2006 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY STC.6430/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUED: --------------------- K.SANTHOSH KUMAR, S/O.KUNHIRAMAN, BUS CLEANER, KOLACHERY, KANNUR. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. M.NARAYAHNAN NAMPOOTHIRI S/O.KRISHNAN NAMPOOTHIRI KAYARALAM PO., KAYARALAM, KANNUR,PIN-670 602. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.342 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in S.T.C.6430/2004 on the file of Judicial First Class Magistrate-II, Kannur. Revision petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.30,000/- for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged conviction before Sessions court, Thalassery in Crl.A.234/2006. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified sentence to imprisonment till rising of court and fine of Rs.35,000/- and in default simple imprisonment for two months. Revision is filed challenging conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the CRRP 342/09 2 evidence on record and concurrent findings of fact revision petitioner is not challenging the conviction or sentence and he may be granted time for payment of compensation. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.30,000/- from first respondent and towards its repayment issued Ext.P1 cheque which was dishonoured for want of sufficient funds when presented for encashment. Evidence also establish that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of the revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the question is regarding the sentence. Learned Sessions Judge modified sentence to imprisonment till rising of court and compensation of Rs.35,000/- and in default simple imprisonment for three months. So long as the sentence is not altered or modified against the interest of first respondent, CRRP 342/09 3 it is not necessary to issue notice to first respondent. As per the modified sentence first respondent is to get compensation of Rs.35,000/-, the amount covered by the dishonoured cheque. In such circumstances, I find no reason to interfere with the modified sentence. But when compensation is awarded under Section 357(3) of Code of Criminal Procedure there cannot be a default sentence. Therefore, direction for default sentence is set aside. Revision petitioner is granted three months time to pay compensation. If revision petitioner is undergoing imprisonment for the default sentence as stated by the learned counsel, he shall be released forthwith, if he is not wanted in any other case. M.SASIDHARAN NAMBIAR, JUDGE. uj.