IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 3855 of 2008 ---------------------------------------- CRL.A.183/2008 OF SESSIONS COURT, KOTTAYAM, ST.1484/2006 OF JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANOOR. .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: ---------------------------------------------------------------------- K.T.SABU, S/O.THANKAPPAN, AGED 43 YEARS, KUNNUMPURATH HOUSE, VILLONNI P.O. KOTTAYAM DISTRICT. BY ADVS. MR. K.M.FIROZ, MR. JACOB E SIMON. RESPONDENTS/ RESPONDENTS/ COMPLAINANT: ----------------------------------------------------------------------- 1. N.R.MADHU, KANCHANA (NILAPANA), ARPOOKARA EAST P.O., KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. P.R. JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3855 OF 2008 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in S.T.1484/2006 on the file of Judicial First Class Magistrate, Ettumanur. Revision petitioner was convicted and sentenced to simple imprisonment for two months and compensation of Rs.1,30,000/- and in default simple imprisonment for two months for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Sessions court, Kottayam in Crl.A.183/2008. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the evidence on record and the concurrent findings of the courts below revision petitioner is not challenging the conviction but sentence may be modified and revision petitioner may be granted time CRRP 3855/08 2 to pay the compensation. 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.1,30,000/- and issued Ext.P1 cheque towards its repayment. It was dishonoured for want of sufficient funds when presented for encashment. It is also established that respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstance, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Learned Magistrate awarded a substantive sentence of simple imprisonment for two months and compensation of Rs.1,30,000/- with a default sentence under Section 357(3) of Code of Criminal Procedure. When compensation is awarded under Section 357(3) of Code of Criminal Procedure there cannot be a default sentence. To that extend sentence is not legal. 6. So long as the sentence is not altered or varied against the interest of first respondent, it is not necessary to issue notice to first respondent. Considering the entire facts and circumstances of the CRRP 3855/08 3 case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and fine of Rs.1,30,000/- and in default simple imprisonment for two months with a direction to pay the fine on realisation, to first respondent as compensation. 7. 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.1,30,000/- 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)(b) of Code of Civil Procedure. Revision petitioner is permitted to pay the fine which is to be paid to first respondent as compensation, directly to first respondent and produce the receipt before the learned Magistrate and satisfy that compensation as directed is paid. Revision petitioner is directed to appear before Judicial First Class Magistrate, Ettumanur on 30/3/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.