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. 109 of 2009() ----------------------------- CRA.223/2004 of ADDL.SESSIONS COURT (FAST TRACK COURT III), THIRUVANANTHAPURAM. CC.153/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: ---------------------------------------------------------------------------- P.R.S. AJITHKUMAR, TAURUS MARKETING CO-DISTRIBUTORS OFFICE STATIONARY- EQUIPMENT, KOCHAR ROAD, EAST FORT, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT&STATE: --------------------------------------------------------------------------------------- 1. AMBILI B, T.C. 14/496,LEKSHMY BAGH, NANDAVANAM ROAD, PALAYAM, THIRUVANANTHAPURAM, 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.109 OF 2009 ------------------------------------------ Dated 12th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in C.C.153/2002 on the file of Chief Judicial Magistrate, Thiruvananthapuram. Revision petitioner was convicted and sentenced to simple imprisonment for one year and a fine of Rs.3,05,000/- and in default simple imprisonment for three months for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions court, Thiruvananthapuram in Crl.A.223/2004. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and compensation of Rs.3,00,000/- and in default simple imprisonment for one year. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. CRRP 109/09 2 3. Learned counsel appearing for revision petitioner submitted that in view of the evidence on record and the concurrent findings of fact, revision petitioner is not challenging the conviction but sentence may be modified and time may be granted to pay the compensation. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.3,00,000/- and issued Ext.P1 cheque towards its repayment and the cheque when presented for encashment was dishonoured for want of sufficient funds and 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. 5. Then the only question is regarding the sentence. There is force in the submission of the learned counsel that when compensation is awarded under Section 357(3) of Code of Criminal Procedure there cannot be a default sentence. In such circumstances, CRRP 109/09 3 sentence warrants modification. So long as the sentence is not altered or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Learned Chief Judicial Magistrate awarded a sentence of simple imprisonment for one year and fine which was modified by learned Sessions Judge to imprisonment till rising of court and compensation. In such circumstances, interest of justice will be met, if sentence is modified to fine with default senten e and direction to pay compensation. 6. Revision petition 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 fine of Rs.3,05,000/- and in default simple imprisonment for two months. On realisation of fine Rs.3,0,000/- to be paid to first respondent as compensation under Section 357(1)(b) of Criminal Procedure Code. Revision petitioner is granted six months time to pay the fine. M.SASIDHARAN NAMBIAR, JUDGE. uj.