IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 Crl.Rev.Pet.No. 1493 of 2008() ------------------------------ CRA.499/2007 of ADDL.SESSIONS COURT (ADHOC II), ERNAKULAM CC.2187/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- VARGHESE MATHAI, S/O.MATHAI, CHIRAKKAPARAMBIL, KAVAKKADUKARA, AYAVANA. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. BIJU PAULOSE, S/O.PAULOSE, PARAKKUDIYIL HOUSE, VARAPETTYKARA, VARAPETTY VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PEEYUS A.KOTTAM FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.1493 OF 2008 ------------------------------------------ Dated 5th January 2009 O R D E R Revision petitioner is accused and first respondent, the complainant in C.C.2187/03 on the file of Judicial First Class Magistrate, Muvattupuzha. Revision petitioner was convicted and a sentenced to simple imprisonment for six months and compensation of Rs.35,000/- by the learned Magistrate for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions court, Ernakulam in Crl.A.499/07. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence by reducing substantive sentence to simple imprisonment for one month in addition to a compensation of Rs.52,000/-. Revision is filed challenging the conviction. 2. Learned counsel appearing for revision petitioner submitted that revision petitioner is not challenging the conviction in view of concurrent CRRP 1493/08 2 findings of fact and evidence on record and the sentence awarded by the court below is excessive. It is pointed out that the amount covered by the dishonoured cheque is only for Rs.35,000/- and a compensation of Rs.52,000/- was awarded in addition to substantive sentence of simple imprisonment for one month. Learned counsel submitted that sentence may be modified. 3. Learned counsel appearing for first respondent submitted that there is no reason to interfere with the sentence also. 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.35,000/- and towards its repayment issued Ext.P1 cheque which was dishonoured for want of sufficient funds. It is also established that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. CRRP 1493/08 3 5. Then the only question is regarding the sentence. Considering the fact that cheque is only for Rs.35,000/-, sentence awarded is excessive. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is sufficiently modified with adequate compensation to first respondent. 6. Revision is allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court and fine of Rs.45,000/- and in default simple imprisonment for two months. On realisation of fine, it is to be paid to first respondent as compensation under Section 357(1) of Criminal Procedure Code. Revision petitioner is granted two months time to pay the fine. He is directed to appear before the Judicial First Class Magistrate, Muvattupuzha on 6/3/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.