IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Crl.Rev.Pet.No. 3455 of 2008() ------------------------------ ST.2731/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD CRA.497/2007 of ADDL. SESSIONS COURT, (ADHOC-I), PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------ S. VIJAYAN, S/O. SIVASANKARAN, AGED 56 YEARS, MODERN FURNITURE WORKS, MUNDUR, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAIKUMAR RESPONDENT(S)/ RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. SOORYA STEELS, 7/807, T.M COMPLEX, CHANDRA NAGAR, PALAKKAD, REPRESENTED BY T. RAMANKUTTY NAIR. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3455 OF 2008 ------------------------------------------ Dated this the 23rd day of October, 2008 O R D E R Petitioner is the accused and second respondent the complainant in S.T. 2731 of 2005 on the file of Judicial First Class Magistrate, Palakkad. Learned Magistrate on the evidence of PW1 and Ext.P1 to P6 found the petitioner guilty. He was convicted and sentenced to simple imprisonment for one month and a compensation of Rs.28,860/- and in default simple imprisonment for one month for the offence under section 138 of Negotiable Instruments Act. Conviction was confirmed and sentence was modified to imprisonment till rising of the Court and compensation was confirmed in Crl.Appeal 497 of 2007. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel for petitioner did not challenge the conviction and sought time for payment of the amount covered by the dishonoured cheque. 4. Evidence of PW1 establish that Ext.P2 cheque was CRRP 3455/08 2 issued towards repayment of the amount due from the petitioner to first respondent. Evidence also establish that Ext.P2 cheque was dishonoured for want of sufficient funds. It is also proved that first respondent has complied with all the statutory formalities by sending Ext.P5 notice served on the petitioner under Ext.P5(b) and filing the complaint within the statutory period. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the question is on the sentence. Learned Sessions Judge confirmed the sentence in part by modifying the substantive sentence to imprisonment till rising of the Court. Ext.P2 cheque is only for Rs.28,860/-. Learned Magistrate awarded a compensation of Rs.28,860/- with a default sentence. In view of the decision of the Apex Court that when compensation is awarded under section 357(3)of Code of Criminal Procedure there cannot be a default sentence, to that extent the sentence is not legal. But that defect can be cured by converting the compensation to fine. So long as sentence is not to be varied or modified against the interest of first respondent, notice to first respondent is not necessary. Revision is allowed in part. Conviction of the petitioner is CRRP 3455/08 3 confirmed. Sentence is modified to imprisonment till rising of the Court and a fine of Rs.29,000/- and in default simple imprisonment for one month. On realisation of fine, Rs.28,860/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is granted two months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 30.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-