IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 3287 of 2008() ------------------------------ CRA.778/2005 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1048/2004 of JUDL. FIRST CLASS MAGISTRATE, KODUNGALLUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- PAUL, S/O. PAILI, OLLAUPURAM HOUSE, PALLIPURAM, MUNAMBAM, KOCHI. BY ADV. SRI.B.RAMACHANDRAN SMT.JOLIMA GEORGE RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE ------------------------------------------------------------------ 1. ABDUL KAREEM, S/O.KOCHUMUHAMMED, KINATTINGAL HOUSE, AZHEEKODE, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3287 OF 2008 =========================== Dated this the 26th day of September,2008 ORDER Petitioner was concurrently convicted for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of the first respondent was that petitioner borrowed Rs.1,25,000/- from him and towards its repayment issued Ext.P1 cheque drawn in his account maintained in Nayarambalam Service Co-operative Bank and when the cheque was presented for encashment through his account in Azhikode Branch of South Indian Bank, it was dishonoured for want of sufficient funds under Ext.P2 and first respondent sent Ext.P4 notice demanding the amount covered by the dishonoured cheque and it was received by petitioner under Ext.P6 and he failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Judicial CRRP 3287/2008 2 First Class Magistrate, Kodungallur on the evidence of PW1 and Exts.P1 to P6, found petitioner guilty of the offence under section 138 of Negotiable Instruments Act and convicted and sentenced to imprisonment till rising of the court and a compensation of Rs.1,25,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence before Additional Sessions Court, Thrissur in Crl.Appeal 778/2005. Learned Sessions Judge on reappreciation of evidence confirmed conviction but modified the sentence to imprisonment till rising of court and a compensation of Rs.1,25,000/- and in default simple imprisonment for six months. Though learned Magistrate had directed to pay interest on the compensation amount, that portion of sentence was set aside. The revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel did not challenge the CRRP 3287/2008 3 conviction but only submitted that petitioner may be granted three months time to pay the fine amount. 4. On going through the judgments of the court below, I do not find any reason to interfere with the conviction. Evidence establish that petitioner borrowed Rs.1,25,000/- and towards its repayment issued a cheque drawn in the account maintained by him. It is also proved that cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. Hence conviction is confirmed. 5. Learned Sessions Judge modified the sentence to imprisonment till rising of court and a compensation of Rs.1,25,000/- and in default with simple imprisonment for six months. As declared by the Apex Court, a default sentence cannot be awarded for compensation awarded under section 357(3) of Code of Criminal Procedure. That defect could be cured by modifying the sentence to fine with default sentence. CRRP 3287/2008 4 Criminal Revision Petition is therefore partly allowed. While confirming the conviction for the offence under section 138, sentence is modified to imprisonment till rising of court and a fine of Rs.1,25,000/- to be paid within three months from today and in default simple imprisonment for three months. On realisation of the fine, it is to be paid to first respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate on 29.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006