IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.Rev.Pet.No. 3748 of 2008(S) ------------------------------------------- CRA.382/2008 of ADDL. SESSIONS COURT (ADHOC II), ERNAKULAM CC.637/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- SHINY.K.O., D/O.K.P.OUSEPH, THEKKINETH HOUSE, THURUTHIKKARA, KIZHAKKAMBALAM. BY ADV. SRI.P.P.BIJU RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. P.N.RAGHAVAN PILLAI, S/O.NEELAKANDAN PILLAI, PUTHENPURAKAL VEEDU, KARATTUPALLIKARA, PERUMBAVOOR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3748 OF 2008 ............................................ DATED THIS THE 20th DAY OF NOVEMBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.637 of 2005 on the file of Judicial First Class Magistrate-II, Perumbavoor. Petitioner was convicted for the offence under Section 138 of N.I.Act and was sentenced to simple imprisonment for three months and a fine of Rs.10,000/- and in default, simple imprisonment for three months and in addition, a compensation of Rs.70,000/- was awarded under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.382 of 2008. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel submitted that revision petitioner is not challenging the conviction, but sentence may be modified and petitioner may be granted time to pay the fine. So long as sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. 3. Judgment of learned Magistrate and learned Sessions Judge CRRP 3748/2008 2 establish that the evidence was properly appreciated and it is proved from the evidence of PW1 that Ext.P1 cheque was issued by petitioner towards repayment of Rs.80,000/- which was legally recoverable. Evidence also establish that cheque was dishonoured for want of sufficient funds and in spite of notice served on petitioner demanding the amount covered by the dishonoured cheque, petitioner did not pay. Hence conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the only question is with regard to sentence. Learned Magistrate sentenced the petitioner to imprisonment for three months and a fine and also compensation. When fine forms part of the sentence, Magistrate is not competent to award compensation under Section 357(3) of Code of Criminal Procedure. Compensation under sub-section (3) of Section 357 could be awarded only when fine does not form part of the sentence. When fine forms part of sentence, compensation could be awarded only as provided under sub-section(1) and that could only be whole or part of the fine. To that extent, sentence is illegal. Ext.P1 cheque is for Rs.80,000/- and from the nature of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine with a direction to pay compensation to first respondent. 5. Revision petition is allowed in part. Conviction of petitioner CRRP 3748/2008 3 for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.85,000/- and in default, simple imprisonment for three months. On realisation of fine, Rs.80,000/- to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted five months time from today to pay the fine. Petitioner is directed to appear before learned Magistrate on 22.4.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-