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. 322 of 2009() ----------------------------- CRA.612/2006 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.88/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: ---------------------------------------------------------------------------- ALIYAMMA VARGHESE, AGED 52 YEARS, W/O. VARGHESE UMMAN RESIDING AT NELPURAYIL VADAKKATHIL HOUSE, VALLAMKULAM EAST, HARIPAD.P.O,KARTHIKAPALLY TALUK. BY ADVOCATE MR.SAJITH KUMAR V. RESPONDENT(S): RESPONDENT:COMPLAINANT: -------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. BIJU.C., AGED 38 YEARS, S/O.CHIDAMBARAN, RESIDING AT BEENA NIVAS, VETTUVENI, HARIPAD P.O.,KARTHIKAPALLY TALUK. R2 BY PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.322 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused and second respondent, the complainant in C.C.88/2005 on the file of Judicial First Class Magistrate-II, Haripad. Revision petitioner was convicted and sentenced to simple imprisonment for six months and compensation of Rs.2,47,000/- for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Sessions court, Mavelikkara in Crl.A.612/2006. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for three months and compensation of Rs.2,47,000/- with a default sentence of simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure. It is challenged in this revision. 2. Learned counsel appearing for revision petitioner was heard. CRRP 322/09 2 3. Learned counsel submitted that in view of the evidence on record and the concurrent findings of fact revision petitioner is not challenging the conviction but sentence may be modified and revision petitioner may be granted six months time 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.2,50,000/- and towards its repayment issued Ext.P1 cheque which was dishonoured for want of sufficient funds when presented for encashment. Evidence also establish that second 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. Then the question is regarding the sentence. Learned Magistrate awarded a compensation of Rs.2,47,000/- taking into consideration Rs.3,000/- which was paid by revision petitioner to first respondent during the pendency of the case. Learned Sessions Judge modified the substantive sentence to simple imprisonment for three months maintaining the compensation. As per the CRRP 322/09 3 sentence second respondent is to get compensation of Rs.2,47,000/-. So long as the sentence is not varied or altered against the interest of second respondent, it is not necessary to issue notice to second respondent. Considering the entire facts and circumstances of the case, interest of justice will be met, if sentence is modified to imprisonment till rising of court and fine with adequate compensation to second respondent. 6. 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 a fine of Rs.2,49,000/- and in default simple imprisonment for two months. On realisation of fine, Rs.2,47,000/- is to be paid to second respondent as compensation under Section 357(1)(b) of Code of Civil Procedure. Revision petitioner is granted six months time to pay fine. Revision petitioner is directed to appear before the Judicial First Class Magistrate-II, Haripad on 28/7/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.