IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA, 1930 Crl.Rev.Pet.No. 116 of 2009() ----------------------------- CRA.167/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.523/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: ---------------------------------------------------------------------------- SHERIN SITHARA, W/O. M.H. FAISAL BABU, 20/317, PUDUPPALLITHERUVU, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): RESPONDENT:COMPLAINANT: -------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.S. NEELIMA, COIMBATORE FINANCE LTD., 11/463, HARIKKARATHERUVU, KOPPAM, PALAKKAD BY ITS MANAGER (HRD) TIJU KATTAKKAYAM, S/O. ABRAHAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/01/2009 ALONG WITH CRL.R.P.NO.117 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. -------------------------------------------------- CRL.R.P.NO.116 & 117 OF 2009 ------------------------------------------------- Dated 12th January 2009 O R D E R Revision petitioner is accused and second respondent, the complainant in S.T.523/2004 and 591/2004 on the file of Judicial First Class Magistrate-II and I Palakkad respectively. Revision petitioner was convicted and sentenced to simple imprisonment for six months and compensation of Rs.5,00,000/- for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged conviction before Additional Sessions court, Palakkad in Crl.A.167/2006 and 281/2006. Learned Additional Sessions Judge as per separate judgments confirmed the conviction and sentence and dismissed the appeals. They are challenged in these revision petitions. Crl.R.P.116/2009 is filed against conviction and sentence in S.T.523/2004 as confirmed in Crl.A.167/2006 and Crl.R.P.117/2009 is filed against the conviction and sentence in S.T.591/2004 as confirmed in Crl.A.281/2006. CRRP 116 & 117/09 2 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the evidence on record and the concurrent fundings of fact, revision petitioner is not challenging the conviction but substantive sentence may be modified and time may be granted to revision petitioner to pay 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.10,000/- along with her husband from second respondent and towards its repayment issued four cheques of Rs.2,50,000/- each. Cheques, when presented for encashment, were dishonoured for want of sufficient funds. Exts.P4 and P5 in S.T.523/2004 and Exts.P2 and P3 in S.T.591/2004 are the respective cheques. Ext.P1 in S.T.591/2004 and Ext.P3 in S.T.523/2004 are the promissory notes executed by revision petitioner evidencing the liability. It is not disputed that dishonour of the cheques was for want of sufficient funds. Evidence establish that second respondent had complied with all statutory formalities provided under Section 138 of Negotiable Instruments Act. In such CRRP 116 & 117/09 3 circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. So long as sentence is not varied or altered against the interest of second respondent, it is not necessary to issue notice to second respondent. As per sentence second respondent is entitled to compensation of Rs.5,00,000/- each in both cases. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court in addition to a fine of Rs.5,00,000/- and in default simple imprisonment for four months with a direction to pay the fine on realisation to second respondent as compensation in each of the cases. 6. Revision petitions are allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act in S.T.523/2004 on the file of Judicial First Class Magistrate-II, Palakkad as confirmed in Crl.A.167/2006 is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.5,00,000/- and in default simple imprisonment CRRP 116 & 117/09 4 for four months. On realisation of fine it is to be paid to second respondent as compensation under Section 357(1) (b) of Criminal Procedure Code. Revision petitioner is granted six months' time to pay the fine. Petitioner is directed to appear before learned Judicial First Class Magistrate-II, Palakkad on 9/7/2009. 7. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act in S.T.591/2004 on the file of Judicial First Class Magistrate-I, Palakkad as confirmed in Crl.A.281/2006 is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.5,00,000/- and in default simple imprisonment for four months. On realisation of fine it is to be paid to second respondent as compensation under Section 357(1)(b) of Criminal Procedure Code. Revision petitioner is granted six months' time to pay the fine. Petitioner is directed to appear before the learned Judicial First Class Magistrate, Palakkad-I on 10/7/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.