IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 215 of 2002() ----------------------------- CRL.A.124/1999 OF ADDL.SESSIONS JUDGE, N.PARAVUR S.T.30/1999 OF Judicial First Class Magistrate-I, ALUVA REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- T.V. PAULOSE, SON OF VARGHESE, RESIDING AT THEKKANATH VEEDU, VADAKKUMBHAGOM, MANJAPRA P.O., ANGAMALY, ERNAKULAM DIST. BY ADV. SRI.P.GOPAKUMARAN NAIR RESPONDENT(S)/1ST RESPONDENT/COMPLAINANT: --------------- 1. SHIBU ALIAS A.V. , SON OF VARGHESE, RESIDING AT ARAKKAPARAMBIL VEEDU, NADUVATTOM, MANJAPRA P.O., ANGAMALY, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.REKHA.C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.215 OF 2002 --------------------------------------------- Dated 3rd August, 2010 O R D E R Petitioner, the accused in S.T.30/1999 on the file of Judicial First Class Magistrate-I, Aluva filed this revision challenging his conviction for the offence under Section 138 of Negotiable Instruments Act. First respondent lodged the complaint contending that petitioner borrowed Rs.15,000/- on 3/10/1994 and again Rs.15,000/- on 10/10/1994 agreeing to pay interest at the rate of Rs.1/- for Rs.100/- and towards repayment of the amount with interest issued Exts.P1 and P2 cheques for Rs.30,000/- and Rs.3,200/- drawn in Federal Bank and when the cheques were presented for encashment, they were dishonoured for CRRP 215/02 2 want of sufficient funds and in spite of Ext.P5 notice demanding the amount covered by the dishonoured cheques received by the petitioner under Ext.P7 acknowledgment card, he failed to pay the amount and thereby committed the offence. Learned Magistrate issued summons on taking cognizance of the offence. On appearance, he pleaded not guilty. First respondent examined himself as PW1 and also examined two other witnesses and marked 14 exhibits. Petitioner was examined as DW1 and exhibits Exts.D1 to D10 were marked. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to rigorous imprisonment for three months and fine of Rs.35,000/- and in default rigorous imprisonment for three months. Petitioner challenged the conviction and sentence before CRRP 215/02 3 Additional Sessions court, North Paravur in Crl.A.124/1999. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction. Sentence was modified to simple imprisonment for three months and compensation of Rs.35,000/- and in default simple imprisonment for three months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that in view of the concurrent findings, the conviction is not challenged and the sentence may be modified. 4. Only question for consideration is whether sentence as modified by the learned Additional Sessions Judge warrants CRRP 215/02 4 interference. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and compensation of Rs.35,000/- and in default simple imprisonment for one month. Petitioner is permitted to pay compensation directly to the first respondent and produce receipt before the learned Magistrate and satisfy that the compensation is paid. If petitioner has deposited any amount before the learned Magistrate pursuant to any order passed by this court, he need only deposit the balance amount. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced CRRP 215/02 5 to imprisonment till rising of court and compensation of Rs.35,000/- and in default simple imprisonment for one month. Petitioner is permitted to pay compensation directly to the first respondent or deposit it before the Magistrate. Petitioner is directed to appear before Judicial First Class Magistrate on 16/8/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.