IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 3775 OF 2008() ------------------------------ CRA.641/2006 of I ADDL. SESSIONS COURT, PALAKKAD ST.820/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- MURALI. K. S/O.KUTTIKRISHNAN, AGED 54 YEARS, 'USHA' NEAR VIJAYAMATHA COLLEGE, PALAKKAD BY ADV. SRI.G.HARIHARAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. SETHUMADHAVAN, AGED 52 YEARS, S/O.LATE GOPALAN NAIR 'AMMA' CHITTUR ROAD, MANAPULLIKAVU, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJAD ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3775 OF 2008 ------------------------------------------ Dated this the 24th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 820 of 2005 on file of Judicial First Class Magistrate-II, Palakkad. Petitioner was convicted and sentenced to simple imprisonment for three months in addition to a compensation of Rs.20,000/- under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Palakkad in Crl. Appeal 641 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to a fine of Rs.25,000/- and in default simple imprisonment for one month. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that Courts below did not properly appreciate the evidence and there is no evidence to prove that petitioner issued Ext.P1 cheque towards discharge of an existing liability and therefore the conviction is not sustainable. It was also argued that when the learned Sessions CRRP 3775/08 2 Judge modified the sentence, the direction in the judgment to surrender before the Magistrate to serve the sentence is illegal as there is no substantive sentence. The learned counsel finally submitted that petitioner may be granted time to pay the fine. 4. On hearing the learned counsel and on going through the judgments of the Courts below, I find no reason to interfere with the factual findings. The learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Ext.P1 cheque was issued towards repayment of Rs.20,000/- borrowed by the petitioner. Though petitioner had raised a contention that he had purchased a car for PW1 and the car was brought to the workshop for repair and after repair it was given to first respondent and later sold for Rs.25,000/-, Courts below on appreciation of evidence disbelieved the defence case. Nothing was pointed out to interfere with that factual finding which is in accordance with evidence. Evidence establish that Ext.P1 cheque was issued towards repayment of the amount borrowed and the cheque was dishonoured for want of sufficient funds and in spite of notice within the statutory period petitioner did not pay the same. Therefore conviction of the petitioner for the offence under CRRP 3775/08 3 section 138 of N.I. Act is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to a fine of Rs.25,000/- and in default simple imprisonment for one month. On realisation of fine Rs.20,000/- was directed to be paid to first respondent as compensation. As the sentence of fine could be double the amount covered by the dishonoured cheque, awarding a sentence of fine of Rs.25,000/- is reasonable and warrants no interference. But there is force in the submission of the learned counsel that when the substantive sentence was modified to fine there should not have a direction to surrender to serve the sentence. That direction is illegal. That direction in the judgment of the Sessions Judge is set aside. Revision is dismissed with the observation that petitioner need not surrender as directed by the Sessions Judge. Petitioner is granted two months time from today to pay the fine. M. SASIDHARAN NAMBIAR, JUDGE Okb/-