IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 3936 of 2008() ------------------------------ CRA NO. 210 OF 2007 OF ADDL. SESSIONS JUDGE, ADHOC-I ,ERNAKULAM C.C. NO. 988 OF 2003 OF J.F.C.M.KOTHAMANGALAM REVN. PETITIONER(S): REVISION PETITIONER/RESPONDENT/COMPLAINANT --------------------------------------------------------------- SASIDHARAN, S/O.KESAVAN, AGED 57 YEARS, THANIVEETTIL, ANGADI KARA, KOTHAMANGALAM. BY ADV. SRI.P.FAZIL RESPONDENT(S): APPELLANT/ACCUSED -------------------------------- 1. MURALEEDHARAN, AGED 39 YEARS, S/O.THANKAPPAN, KANAMPURATHU HOUSE, KOOVALLOOR P.O., MADIYOOR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No.3936 of 2008 * * * * * * * * * * * * * * * * * * Dated: 10th February, 2009 ORDER The first respondent accused in C.C. No. 988 of 2003 on the file of the J.F.C.M. Kothamangalam has been concurrently found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 for having drawn Ext.P1 cheque dated 16- 10-2000, for a sum of Rs. 1,85,000/- in discharge of the amount borrowed by him from the revision petitioner/complainant and for not honouring the same even after statutory notice was issued to him pursuant to the dishonour of the cheque by the drawee bank. The courts below have not accepted the defence by the respondent. The trial court sentenced the first respondent to simple imprisonment for six months and to pay compensation of Rs. 1,85,000/- together with interest at the rate of 6 % per annum from 28-12-2000 till date of payment failing which a default sentence of imprisonment for six months was also imposed. On appeal preferred by the first respondent/accused as Crl.Appeal No. 210 of 2007, the Addl. Sessions Court, Ernakulam confirmed the conviction Crl.R.P. No. 3936 of 2008 -:2:- recorded by the trial court against him but modified the sentence to imprisonment for 15 days only giving him set off under Sec. 428 Cr.P.C. 2. The revision petitioner/complainant challenges the modified sentence imposed by the lower appellate court. His main grievance is that he was not even given an opportunity of being heard before the lower appellate court modified the sentence. 3. The learned counsel appearing for the first accused would submit that the transaction which was set up by the revision petitioner/complainant was false and that the first respondent/accused was unable to comply with even the interim order passed by the lower appellate court and that it was noticing that he was in prison that the lower appellate court on being convinced about his inability to pay even half of the cheque amount, modified the sentence of imprisonment to 15 days, already undergone by him. 4. I am unable to accept the contention of the Ist respondent/accused. Absolutely no material was produced before the lower appellate court to show the alleged inability of the first respondent/accused to pay the cheque amount. Merely because he opted to undergo the sentence of imprisonment it cannot be presumed that he is unable to pay the cheque amount. Crl.R.P. No. 3936 of 2008 -:3:- 5. In the result, the sentence imposed by the lower appellate court is modified as follows:- “For the conviction under Sec. 138 of the N.I.Act, the first respondent is sentenced to simple imprisonment for 15 days which has already been undergone by him and to pay fine of Rs. 1,85,000/- which shall be paid to P.W.1 as compensation under Sec. 357 (1) Cr.P.C. On default to pay the compensation, the first respondent shall undergo simple imprisonment for six months”. This Crl.R.P. is disposed of as above. Dated, this the 10th day of February, 2009. V.Ramkumar, Judge. Paragraph 5 of the final order dated 10-2-2009 in Crl.R.P. No. 3936 of 2008 beginning with the words “In the result”............ and ending with the words “for six months” is substituted as “in the result, the sentence imposed by the lower appellate court is modified as follows: “For the conviction under Sec. 138 of the N.I.Act, the first respondent is sentenced to simple imprisonment for 15 days (which has already been undergone by him) and to pay a fine of Rs. Crl.R.P. No. 3936 of 2008 -:4:- 1,85,000/- which shall be paid to P.W.1 as compensation under Sec. 357 (1) Cr.P.C. within six months from today failing which the first respondent/accused shall undergo simple imprisonment for four months” by way of default sentence”. Sd/-V. RAMKUMAR, (JUDGE)