IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 1119 of 2009() ------------------------------ CRA.501/2008 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.650/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): RESPONDENT/COMPLAINANT ------------------------------- K. PURUSHOTHAMA NAICK, S/O. KRISHNA NAICK, METHAPETTY PARAMBU, PALLURUTHY, KOCHI -6. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S)/APPELLANT/ACCUSED: --------------- 1. P. SREEKUMAR, S/O.P.T. PURUSHOTHAMAN NAIR, KUNNATHEDATHU HOUSE, WEST KADUNGALLUR, ALUVA. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1119 of 2009 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Dissatisfied with the sentence modified by the appellate court while confirming the conviction of respondent No.2, complainant in a successful prosecution for offence under Section 138 of the Negotiable Instruments Act (for short, “the Act”) has come up in revision. Since only the question of legality and propriety of the sentence as modified by the appellate court is involved in this revision it is not necessary for me to go in depth to the facts of the case and the evidence. Learned counsel contends that it is without valid reason that sentence imposed by the trial court was modified by the appellate court. 3. Cheque dated 7.4.2005 issued by respondent No.1 for Rs.20,000/- was dishonoured for insufficiency of funds. The amount was not paid inspite of a notice intimating dishonour and demanding payment. Thus, respondent No.1 committed the offence punishable under Section 138 of the Act. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and pay fine of Rs.30,000/- with default sentence for six months. It was directed that out of fine if realised, Rs.25,000/- will be given to the petitioner as Crl.R.P.No.1119 of 2009 2 compensation under Section 357(1) of the Code of Criminal Procedure. In appeal at the instance of respondent No.1, appellate court modified the sentence to fine of Rs.20,000/- with default sentence for one month. It was directed that fine if realized will be given to the petitioner. 4. It is contended by learned counsel that it is without valid reason the sentence was modified by the appellate court. Learned counsel also points out that cheque is dated 7.4.2005 and case was disposed of by the learned magistrate only in the year 2008. 5. Sentence is largely a matter within the discretion of the trial court of course to be exercised in accordance with the known principles of law taking into account the facts of each case. Appellate court can exercise all the powers of the trial court, including awarding proper sentence. Superior court need and should interfere in the discretion exercised by the trial court only when the sentence awarded is grossly inadequate. Appellate court has stated that when the cheque is for Rs.20,000/- there was no reason for sentencing respondent No.1 to pay fine of Rs.30,000/-. It is on that premise the sentence was modified. Appellate court has exercised a discretion. After all the amount covered by the cheque is Rs.20,000/- and the appellate court has directed that the fine of Crl.R.P.No.1119 of 2009 3 Rs.20,000/- if realized will be paid to the petitioner. I am not inclined to think that sentence as modified by the appellate court is grossly inadequate calling for interference in revision. 6. Counsel for petitioner requested that a direction may be issued to the trial court to take coercive steps for realization of the fine. I do not think that a direction in that way is required since if respondent No.1 has not paid the fine, it is obligatory on the part of the trial court to initiate coercive steps in that regard. I do not find any illegality and impropriety in the appellate court interfering with the sentence. Resultantly, this revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks