IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3366 OF 2008() ------------------------------ CRA.387/2006 of ADDL. SESSIONS COURT (ADHOC-I), THRISSUR ST.3575/2003 of JUDL.FIRST CLASS MAGISTRATE COURT, VADAKKANCHERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- ARAVINDAKSHAN, AGED 53,S/O.VELU, MELEPPATTU HOUSE, ENKAKKADU DESOM, WADAKKANCHERRY VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.M.ANIL KUMAR SMT.PREETHI K.PURUSHOTHAMAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------ 1. KRISHNAKUMAR, S/O.VASANTHIYAMMA, PUTHENVEETTIL HOUSE, PUDURUTHI DESOM, VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3366 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. Case of the first respondent is that petitioner borrowed Rs.30,000/- and towards its repayment issued Ext.P1 cheque drawn on his account maintained in Vadakkanchery branch of State Bank of Travancore on 23.4.2003 and when the cheque was presented for encashment, it was dishonoured under Ext.P2 memo, for want of sufficient funds and first respondent sent Ext.P3 notice, demanding the amount covered by the dishonoured cheque which was received by petitioner under Ext.P5 acknowledgement card. But he failed to pay the amount and thereby committed the offence. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P5 were marked. Petitioner was not examined and on his side Exts.D1 to D3 were marked. Learned Magistrate on the evidence found him guilty and convicted and sentenced him to simple imprisonment for three months and a compensation of CRRP3366/08 2 Rs.30,000/- and in default simple imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl. Appeal 387 of 2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel argued that Courts below were not justified in convicting the petitioner as there is no evidence to prove that Ext.P1 cheque was issued towards discharge of a legally recoverable debt and on the evidence it should have been found that petitioner did not commit the offence. It was also submitted that petitioner had undergone an open heart surgery and in such circumstances in the event of confirming the conviction and sentence may be modified granting sufficient time to the petitioner to pay the amount. 4. Though the petitioner contended that he did not issue Ext.P1 cheque towards discharge of an existing liability, learned Magistrate on the evidence of PW1 found that Ext.P1 cheque was issued towards repayment of amount borrowed. Learned Sessions judge on reappreciation of evidence, confirmed the finding. Nothing was pointed out to interfere with that finding. CRRP3366/08 3 Evidence also establish that Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied will all the statutory formalities as provided under the Act. In such circumstances conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal and correct. 5. Then the only question is with regard to the sentence. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Ext.P1 cheque is for Rs.30,000/-. Courts below sentenced petitioner to simple imprisonment for three months in addition to a compensation of Rs.30,000/- under section 357(3) or Cr.P.C. with a default sentence of simple imprisonment for one month. As declared by the Apex Court, when compensation is awarded under section 357(3) of Cr.P.C., there cannot be a default sentence. To that extent the sentence warrants interference. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence is modified to imprisonment till rising of the Court in addition to a fine of Rs.30,000/- and in default simple imprisonment for one month. On realisation of fine amount it is to be paid to first respondent as compensation under section 357 (1) of Cr.P.C. Petitioner is granted three months time to pay CRRP3366/08 4 fine amount. 6. Learned counsel appearing for petitioner then submitted that petitioner may be permitted to pay the fine directly to first respondent and to produce the receipt before the learned Magistrate. Petitioner is permitted to pay the fine amount directly to the complainant and produce the receipt before the learned Magistrate but it is for the petitioner to establish that the receipt is issued by first respondent. Revision is partly allowed. Conviction of the petitioner is confirmed. Sentence is modified to imprisonment till rising of the Court and a fine of Rs.30,000/- to be paid within three months from today and in default simple imprisonment for one month. On realisation of fine amount it is to be paid to complainant as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is permitted to pay the fine directly to the complainant and produce the receipt of the same to the satisfaction of the learned Magistrate. Petitioner is directed to appear before the learned Magistrate on the expiry of three months from today. M. SASIDHARAN NAMBIAR, JUDGE Okb/-