IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 Crl.Rev.Pet.No. 3314 of 2009() ------------------------------ CRA.223/2007 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.75/2004 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.K.RAJEEVAN, AGED 34 YEARS, S/O.CHOYICHI, RESIDING AT MADATHIL HOUSE, THAYANUR VILLAGE, THAYANUR (PO), ANANDASRAM (VIA), HOSDURG TALUK. BY ADV. SRI.K.I.SAGEER IBRAHIM RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. AMEER KUNHI.A., S/O.A.P.MOIDU, FARISA RESIDENCE, KALICHAND UKKAN, NILESWAR (VIA), HOSDURG TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3314 of 2009 ---------------------------------------- Dated this the 26th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.75 of 2004 on the file of the Judicial Magistrate of the First Class-I, Hosdurg. He was prosecuted by the first respondent alleging offence under section 138 of the Negotiable Instruments Act. The trial court after due trial arrived a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for a period of 2 months and to pay an amount of Rs.65,000/- as compensation to the first respondent under section 357(3) of the Code of Criminal Procedure. 2. Aggrieved by the above conviction and sentence Criminal Appeal No.223 of 2007 was filed. The learned Additional District & Sessions Judge (Ad hoc) III, Kasaragod to whom the appeal was made over confirmed the conviction and modified the sentence by enhancing the quantum of the compensation to Rs.75,000/- in suppression of the substantive sentence. Assailing the legality, correctness and propriety of the conviction and sentence, as modified in appeal, this revision Crl.R.P.No.3314 of 2009 2 petition was filed. 3. Having heard the learned counsel for the revision petitioner and perusing the judgment impugned, I find that the first respondent, who was examined as P.W.1, supported by Exts.P1 to P4, had succeeded to establish that the revision petitioner owed a sum of Rs.75,000/- to the first respondent and in discharge of the said liability, Ext.P1 cheque dated 13.8.2003 was issued and that when Ext.P1 was sent for collection, it was dishonoured for insufficiency of funds, as evidenced by Ext.P2 memo. Though a lawyer notice, copy of which was marked as Ext.P3 dated 3/9/2003, was caused demanding discharge of the liability and it was acknowledged by the petitioner as evidenced by Ext.P4, the liability was not discharged. Neither any reply. Commission of offence under Section 138 of the Negotiable Instruments Act is established. Conviction is based on cogent evidence and required no interference. 4. The appellate court was very lenient in reducing the sentence to compensation. But it enhanced the compensation by Rs.10,000/-. The trial court had fixed the amount after taking note that Rs.10,000/- was paid by the revision petitioner during Crl.R.P.No.3314 of 2009 3 the pendancy of the proceedings. Appellate Court didn't count the payment by stating that the revision petitioner has no case. But when it is admitted by the first respondent, no further proof or plea is required. In the above circumstances, the enhancement of compensation by the appellate court is not justified. It requires to be reduced to the amount fixed by the trial court. 5. In the result, this revision petition is allowed in part. While confirming the conviction sentence is reduced to a compensation of Rs.65,000/-. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for three months. The revision petitioner is granted six months time for payment of the compensation provided he executes a bond for Rs.15,000/- (Rupees fifteen thousand only) with 2 solvent sureties each for like sum to the satisfaction of the trial court. P.S.GOPINATHAN, JUDGE skj.