IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 Crl.Rev.Pet.No. 146 of 2009(C) --------------------------------------- CRA.744/2007 of THE ADDL. DISTRICT AND SESSIONS COURT, FIRST TRACK (ADHOC-II), KOZHIKODE CC.351/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- M.K.RAMAKRISHNAN NAIR, S/O.KRISHNAN, AGED 54 /06, "SAROVARAM" 28/118 A,CHEVARAMBALAM P.O., THONDAYAD, CALICUT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. M.VINOD KUMAR, S/O. LATE M.RAGHAVAN AGED 36 YEARS, MURINGOLI HOUSE WEST HILL PO, CALICUT -5 REP. BY POWER OF ATTORNEY M.CHANDRASEKHARAN, S/O. LATE M.RAGHAVAN, AGED 57 YEARS, MURINGOLI HOUSE, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.146 OF 2009 -------------------------------------------------- Dated this the 23rd day of January, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C. 351 of 2005 on the file of Judicial First Class Magistrate-IV, Kozhikode. Revision petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.4,00,000/- for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Additional Sessions Court, Kozhikode in Crl. Appeal 744 of 2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel in view of the evidence on record and the concurrent findings of fact by the Courts below submitted that revision petitioner is not challenging the conviction but CRRP 146/2009 2 sentence may be modified and revision petitioner may be granted time to pay the 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.4,00,000/- from first respondent and towards its repayment issued Exts.P1 and P3 cheques respectively for Rs.50,000/- and Rs.3,50,000/- and the cheques when presented for encashment, were dishonoured for want of sufficient funds. Evidence also establish that first respondent had complied with the statutory formalities provided under section 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. 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. Exts.P1 and P3 together are for Rs.4,00,000/-. Learned Magistrate awarded a compensation of Rs.4,00,000/- to the first respondent. Considering the entire facts and CRRP 146/2009 3 circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of Court and fine of Rs.4,00,000/- and in default simple imprisonment for three months. On realisation of fine, it is to be paid to first respondent as compensation. 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. Revision petitioner is sentenced to imprisonment till rising of Court and fine of Rs.4,00,000/- 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 granted six months time to pay the compensation. Revision petitioner is directed to appear before Judicial First Class Magistrate-IV, Kozhikode on 23.7.2009. M. SASIDHARAN NAMBIAR, JUDGE okb