IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3536 OF 2008() ------------------------------ CRA.564/2007 of ADDL. DISTRICT & SESSIONS COURT(ADHOC-II),PALAKKAD CC.470/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.M.ASOKAN, S/O.KUNHIRAMAN NAIR, THIRUVOTTUMEETHAL HOUSE, THIRUTHIYAD P.O., BALUSSERY AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/STATE & COMPLAINANT: ---------------------------------------------- 1. CHANDRAN, S/O.KUNHIRAMAN, KUTTIKANDI THAZHE HOUSE, THIRUTHIYAD P.O., BALUSSERY AMSOM DESOM, KOYILANDY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3536 OF 2008 ------------------------------------------ Dated this the 27th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C. 470 of 2006 on the file of Judicial First Class Magistrate-II, Perambra. First respondent lodged the complaint contending that revision petitioner borrowed Rs.75,000/- on 21.12.2005 and towards its repayment issued Ext.P1 cheque dated 31.5.2006 drawn in his account and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2 and in spite of Ext.P3 notice, demanding the amount served under Ext.P5, petitioner did not pay and instead Ext. P6 reply notice was sent and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of first respondent as PW1 and Exts.P1 to P6 found the petitioner guilty. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.75,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction before CRRP 3536/08 2 Sessions Court, Kozhikode in Crl. Appeal 564 of 2007. Learned 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 did not challenge the conviction and sought only modification of the sentence and time for payment of amount. 4. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 5. The judgments of the Courts below establish that evidence was properly appreciated. The evidence of PW1 establish that Ext.P1 cheque was issued towards discharge of Rs.75,000/- borrowed earlier. It is also proved that the cheque was dishonoured for want of sufficient funds. It is further proved that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. CRRP 3536/08 3 6. Then the only question is regarding the sentence. Though learned Magistrate awarded a substantive sentence it was reduced by the learned Sessions Judge. From the nature of the offence and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of Court in addition to fine with a direction to pay the fine on realisation to first respondent as compensation. 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 to imprisonment till rising of Court and a fine of Rs.80,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.75,000/- is to be paid to first respondent as compensation under section 357(1)(b) of Code of Criminal Procedure. On the request of the learned counsel, revision petitioner he is granted six months time from today, to pay the fine. Revision petitioner is directed to appear before the Magistrate on 28.5.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-