IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3992 of 2008() ---------------------------------------- CRA.417/2006 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.775/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM REVN. PETITIONER: ---------------------------- MANIYAN ACHARI,S/O.RAMASWAMY ACHARI JAYA NIVAS, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE FROM NADAYIL KIZHAKKAHIL NJAKKANAI MURI, KRISHNAPURAM VILLAGE. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH RESPONDENT(S): ------------------------- 1. ADMADASAN, S/O.KOCHUVELUMBAN PALATHIN KEEZHIL VEEDU, CHIRAKADAVOM MURI KAYAMKULAM VILLAGE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.Revision Petition No. 3992 of 2008 ----------------------------------------------------------- Dated this the 10th day of December, 2008 O R D E R Revision Petitioner is the accused and first respondent the complainant in C.C.No.775/2005 on the file of Judicial First Class Magistrate Court, Kayamkulam. Revision Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Conviction and sentence was challenged before the Additional Sessions Court-II, Mavelikkara in Criminal Appeal No.417/2006. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner was heard. Learned counsel submitted that, in Crl.R.P.No.3992/2008 - 2 - view of the evidence on record and concurrent findings of the fact, revision petitioner is not challenging the conviction. But the sentence may be modified. 3. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that Exhibit P1 cheque was issued by the revision petitioner towards repayment of Rs.60,000/-, borrowed earlier. Evidence also establish that the cheque was dishonoured for want of sufficient funds and in spite of demand in writing for the amount covered by the dishonoured cheque, petitioner did not pay. Evidence also establish that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. Hence, conviction of the revision Crl.R.P.No.3992/2008 - 3 - petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 4. Then, the question for consideration is whether sentence is reasonable. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 5. Exhibit P1 cheque is for Rs.60,000/- and was issued on 25-11-2004. Considering the entire facts and circumstances, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and fine of Rs.65,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.61,000/- is to be paid to the first respondent as compensation. Crl.R.P.No.3992/2008 - 4 - Revision petition is allowed in part. Conviction of the revision petitioner for the offence under Section 138 is confirmed. Sentence is modified. Revision petitioner is sentenced to undergo imprisonment till rising of court and to a fine of Rs.65,000/- and in default to undergo simple imprisonment for a period of two months. On realization of fine, Rs.61,000/- is to be paid to first respondent as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Revision Petitioner is granted four months' time to pay the fine. Revision petitioner is directed to appear before the Judicial First Class Magistrate, Kayamkulam on 15-4-2009. Sd/- M. SASIDHARAN NAMBIAR, JUDGE skr // True copy // P.A. to Judge.