IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3496 of 2008() ------------------------------ CRA.596/2005 of II ADDL.SESSIONS COURT, KOLLAM CC.950/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER:APPELLANT/ACCUSED ---------------------------------------------- SAFIA KABEER, A.R. MANZIL ODAYIL PURAYIDOM CONTONMENT NORTH, KOLLAM EAST VILLAGE. BY ADV. SRI.V.V.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT: RESPONDENT/COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. REVATHY KORITHU, ODAYIL PURAYIDOM CONTONMENT NORTH, KOLLAM EAST VILLAGE. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3496 OF 2008 =========================== Dated this the 30th day of October,2008 ORDER Petitioner is the accused and second respondent the complainant in C.C.950/2002 on the file of Judicial First Class Magistrate, Kollam. Case of the second respondent was that petitioner borrowed Rs.33,000/- and towards its repayment issued Ext.P1 cheque drawn on his account maintained in Kollam Branch of Indian Bank dated 30.10.2001 and when it was presented for encashment, under Ext.P2 it was dishonoured for want of sufficient funds and inspite of Ext.P4 notice demanding the amount covered under Ext.P1 petitioner failed to pay the same and thereby committed the offence under section 138. Petitioner pleaded not guilty. Second respondent was examined as PW1 and Exts.P1 to P6 were marked. Petitioner did not adduce any oral evidence and only Exts.D1 and D2 were marked. Learned Magistrate on the evidence found the CRRP3496/2008 2 petitioner guilty. She was convicted and sentenced to simple imprisonment for three months and a fine of Rs.5000/- and in default simple imprisonment for one month. On realisation of fine, it was directed to be given to second respondent as compensation. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.596/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to fine of Rs.33,000/- and in default simple imprisonment for three months with a direction to pay the fine on realisation to second 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 the petitioner did not challenge the conviction but only submitted that the modified sentence is illegal. It was argued that as the Magistrate could not have awarded a fine of Rs.33,000/- in modification of the sentence learned Sessions Judge CRRP3496/2008 3 cannot award a fine of Rs.33,000/- and therefore the fine in excess of the permissible limit is illegal. Learned counsel also submitted that petitioner may be granted time to pay the fine. 3. Learned Magistrate and learned Sessions Judge on appreciating the evidence in the proper perspective found that Ext.P1 cheque was issued towards repayment of the amount due. On going through the judgments of the courts below, I do not find any reason to interfere with that factual finding. Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Hence conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. 4. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to fine and that too for the amount covered by the dishonoured cheque. The argument of CRRP3496/2008 4 the learned counsel is that in view of the limit of fine provided under section 29 of Code of Criminal Procedure, learned Sessions Judge should not have modified the sentence to a fine in excess of the limit provided under section 29 of Code of Criminal Procedure. 5. The proviso to Section 143 of Negotiable Instruments Act enables the Magistrate to award a fine in excess of the limit provided under section 29 of the Code of Criminal Procedure. Hence there is no illegality in the modified sentence as canvassed by the learned counsel for the petitioner. No modification in the sentence is warranted. Criminal Revision Petition is dismissed. Petitioner is granted two months time to pay the fine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006