IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 4040 of 2008() ------------------------------ CRA.320/2008 of ADDL. SESSIONS JUDGE(ADHOC-II), ERNAKULAM ST.159/2006 of JFCM-IV, KOCHI .................... REVN. PETITIONER(S): APPELLANT ------------------------------ 1. P. SANDEEP, CHIEF EXECUTIVE OFFICER, M/S. ECOM COMPUSHOPE COM. LTD., 37, SECOND LANE, UDAYANAGAR, KARTHRUKADAVU, KALOOR, KOCHI - 682 017. 2. M/S. ECOM COMPUSHOPE COM. LTD., 37, SECOND LANE, UDAYANAGAR, KATHRUKADAVU, KALOOR, KOCHI-682017. BY ADV. SRI.T.M.DOLGOVE RESPONDENT(S): RESP0NDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. HIMAGIRI RESOURCES, 39/5671-72, AMIGO HOUSE, THOUNDAYIL ROAD, PANAMPILLY NAGAR, KOCHI-36,ERNAKULAM DIST. REP. BY ITS PROPRIETOR, T.V. RAMAKRISHNAN,S/O.T.R. VIJAYAN, RESIDING AT D-1, UNIDEK ENCLAVE, ST. SEBASTIAN ROAD, VYTTILA, KOCHI-19. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.12.2008 , THE COURT ON 12/12/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ----------------------------------------------- CRL.R.P. No.4040 OF 2008 ----------------------------------------------- Dated this the 12th day of December, 2008 ORDER Revision Petitioners are the accused and second respondent the complainant in ST No.159/06 on the file of Judicial First Class Magistrate-IV, Kochi. Revision Petitioners were convicted and sentenced for the offence under section 138 of the Negotiable Instruments Act. They challenged the conviction before the Additional Sessions Judge (Adhoc-II) Ernakulam in Crl.A.No.320/08. The learned Sessions Judge on reappreciation of the evidence confirmed the conviction, and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel for the revision petitioners submitted that in view of the concurrent findings of the fact and the evidence on record, revision petitioners are not challenging the conviction and sentence may be modified and one months time to be granted to pay the amount. CRRP.NO.4040/08 2 3. On going through the judgment of the Courts below, I find no reason to interfere with the conviction. The evidence establish that Ext.P1 cheque was issued by the revision petitioner towards payment of Rs.25,000/- due from him. It is also proved that cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under section 138 and 142 of the Negotiable Instruments Act. Conviction for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 4. Then the only question is regarding the sentence. So long as the sentence is not a varied or modified against the interest of the second respondent it is not necessary to issue notice to the second respondent. Ext.P1 cheque was issued towards the payment of Rs.25,000/- . Magistrate sentenced first petitioner to simple imprisonment for two months and pay compensation of Rs.25,000/- to first respondent. Second petitioner was sentenced to fine of CRRP.NO.4040/08 3 Rs.5,000/-. The learned Sessions Judge confirmed the sentence. But considering the entire facts of the case the sentence as against first revision petitioner is modified to simple imprisonment till rising of court and fine of Rs.25,000/- and in default simple imprisonment for 2 months with a direction to pay the fine on realisation to second respondent as compensation. I find no reason to interfere with the sentence as against the second revision petitioner. Revision is allowed in part . Conviction of the revision petitioners for the offence under section 138 of the Negotiable Instruments Act and the sentence as against the second revision petitioner is confirmed. The sentence as against first revision petitioner is modified and he is sentenced to imprisonment till rising of Court and to pay fine of Rs.25,000/-and in default simple imprisonment for two months. On realisation of the said fine, it is to be paid to second respondent as compensation under section 357 CRRP.NO.4040/08 4 (1) (b) of the Code of Criminal procedure. The first revision petitioner is granted one months time to pay the amount. The first revision petitioner is directed to appear before the Magistrate on 15.1.2009. M.SASIDHARAN NAMBIAR, JUDGE sks/-