IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 3438 of 2008() ------------------------------ CRA.427/2006 of SESSIONS COURT, PATHANAMTHITTA CC.164/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER:APPELLANT/ACCUSED --------------------------------------------- SOMARAJAN, CHITHRA BHAVAN PADINJATTUMCHERI MURI KAVIYOOR VILLAGE THIRUVALLA TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.N.RAJU, VALIYAKUNNATHU HOUSE, WEST OTHERA P.O. THIRUVALLA. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3438 OF 2008 =========================== Dated this the 22nd day of October,2008 ORDER Petitioner is the accused and second respondent the complainant in C.C.164/2003 on the file Judicial First Class Magistrate, Thiruvalla. Second respondent lodged the complaint contending that petitioner borrowed Rs.1,00,000/- and towards its repayment issued Ext.P1 cheque drawn in his account maintained in State Bank of India, Thiruvalla Branch and when the cheque was presented for encashment it was dishonoured for want of sufficient funds under Ext.P2 and inspite of Ext.P4 notice served on the petitioner under Ext.P6, he did not pay the amount and thereby committed an offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Magistrate on the evidence of second respondent as PW1 and Exts.P1 to P6 found the petitioner guilty. He was sentenced to simple CRRP 3438/2008 2 imprisonment for four months and a compensation of Rs.1,00,000/-. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.427/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but sentence was modified to imprisonment till rising of the court and a compensation of Rs.1,00,000/- and in default simple imprisonment for three months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel did not challenge the conviction. It is submitted that petitioner may be granted six months time to pay the fine. 4. Evidence of PW1 establish that petitioner borrowed Rs.1,00,000/-and towards it repayment issued Ext.P1 cheque. Evidence also establish that it was dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities as provided under sections CRRP 3438/2008 3 138 and 142 of Negotiable Instruments Act. In such circumstance, I do not find any reason to interfere with the conviction for the offence under section 138 of N.I. Act. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the substantive sentence to imprisonment till rising of the court. In addition compensation awarded was confirmed. As declared by the Apex Court, when compensation is awarded under section 357(3) of the Code of Criminal Procedure, default sentence cannot be part of the sentence. Therefore to that extent, sentence warrants interference. But that defect could be cured, if the sentence is modified to fine instead of compensation with a direction to pay the same on realisation to second respondent as compensation. 6. In such circumstance, revision is allowed. Conviction of the petitioner for the offence under section 138 of N.I. Act is confirmed. Petitioner is sentenced to imprisonment till rising of the CRRP 3438/2008 4 court and a fine of Rs.1,00,000/- to be paid within four months from today and in default simple imprisonment for one month. On realisation of the fine, it is to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the Judicial First Class Magistrate, Thiruvalla on the expiry of four months from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006