IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4010 OF 2008() ------------------------------ CRA.347/2008 of ADDL. SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.2651/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.K.SHAJI, S/O.SREEDHARAN, CHIRAKKARA VEEDU, KAPPUKARA MANJALOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.MANUEL THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------------------- 1. UMMER, S/O.MUSTHAFA, KALARICKAL VEEDU, KAPPUKARA MANJALOOR VILLAGE, MUVATTUPUZHA TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 4010 OF 2008 ------------------------------------------ Dated this the 11th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.2651 of 2003 on the file of Judicial First Class Magistrate, Muvattupuzha. Petitioner was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.75,000/- and in default simple imprisonment for one month for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Ernakulam in Crl. Appeal 347 of 2008. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel, in view of the concurrent findings of fact and the evidence on record, did not challenge the conviction, but sought modification of the sentence and four months time to pay the amount covered by the dishonoured cheque. CRRP4010/2008 2 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.75,000/- from first respondent and towards its repayment issued Ext.P1 cheque, on 1.5.2000 and it was dishonoured for want of sufficient funds. It is also proved that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of the Negotiable Instruments Act is perfectly legal. 5. Then the only question is regarding the sentence. So long as the sentence is not varied or modified against the interest of the first respondent, it is not necessary to issue notice to first respondent. Considering the facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of Court in addition of a fine of Rs.75,000/- 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) of Code of Criminal Procedure. Revision is allowed in part. Conviction of the petitioner for CRRP4010/2008 3 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 a fine of Rs.75,000/- to be paid within four months from today 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) of Cr.P.C. Revision petitioner is directed to appear before Judicial First Class Magistrate on 16.4.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-